Judge Walter P. Schwarm, Case 30-2021-01211808 2022-12-06 Tentative Ruling

Judge: Walter P. Schwarm, Case: 30-2021-01211808, Date: 2022-12-06 Tentative Ruling

Motion No. 1:

Defendant’s (Garo Babikian dba GJ Design) unopposed Motion to Set Aside Entry of Default (Motion), filed on 6-23-22 under ROA No. 149, is CONTINUED to 1-10-23 at 9:00 a.m. in Department C32.

Defendant requests discretionary relief under Code of Civil Procedure section 473, subdivision (b). (Motion; 3:3-5:4.) Plaintiff (Laguna Crest Enterprise, Inc.) filed a default against Defendant on 6-8-22 under ROA No. 134.

Section 473(b) provides in part, “Code of Civil Procedure section 473, subdivision (b), states, in part, “The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken . . . .”

Evan Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 838-839 (Zohar), explains, “Section 473(b) contains two distinct provisions for relief from default. The first provision, presented here only for context, is discretionary and broad in scope: ‘The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.’ (§ 473(b).) The second provision is mandatory, at least for purposes of section 473, and narrowly covers only default judgments and defaults that will result in the entry of judgments. This provision, the one here at issue, declares as follows: ‘Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect.’ (§ 473(b).)”

Defendant timely filed this Motion on 6-23-22 which was within six months of 6-8-22, the date Plaintiff entered the default against Defendant.

The declaration in support of the Motion states, “I was informed of the lawsuit in February of 2022 but was advised by Defendant Daniel Scinto that the matter would be going to arbitration. That is why I didn’t think I had to do anything.” (Babikian Decl., ¶ 8.) Defendant further states, “More importantly, I was never served by Plaintiff of any legal documents until I open the Request for Entry of Default recently.” (Babikian Decl., ¶ 9.) Defendant’s declaration sufficiently demonstrates mistake, inadvertence, surprise, or excusable neglect. Thus, Defendant has made a sufficient showing to set aside the default.

The Motion, however, does not provide a copy of the answer or other proposed pleading as required by Code of Civil Procedure section 473, subdivision (b). Therefore, the court CONTINUES Defendant’s (Garo Babikian dba GJ Design) unopposed Motion to Set Aside Entry of Default, filed on 6-23-22 under ROA No. 149, to 1-10-23 at 9:00 a.m. in Department C32 for Defendant to file and serve a copy of the proposed answer or other pleading.

Court Clerk is to give notice.

Motion No. 2:

Defendant’s (Fred Silva) unopposed Motion to Set Aside Entry of Default or Default Judgment (Motion), filed on 6-23-22 under ROA No. 153, is CONTINUED to 1-10-23 at 9:00 a.m. in Department C32.

On 11-8-22, the court continued the hearing on “the Motion to 12-6-22 at 9:00 a.m. for Defendant to file and serve a copy of the answer or other proposed pleading no later than 9 court days before 12-6-22 at 9:00 a.m. in Department C32.” (11-8-22 Minute Order.)

Defendant has not filed an answer or other proposed pleading as required by Code of Civil Procedure section 473, subdivision (b). The court will CONTINUE the hearing and give Defendant one last opportunity to comply with Code of Civil Procedure section 473, subdivision (b). Defendant’s failure to file and serve a copy of the proposed answer or other pleading before 1-10-23 could result in the court denying this Motion.

Court Clerk is to give notice.