Judge Yolanda Orozco, Case 20STCV29348 2022-08-30 Tentative Ruling

Judge: Yolanda Orozco, Case: 20STCV29348, Date: 2022-08-30 Tentative Ruling

Case Number: 20STCV29348 Hearing Date: August 30, 2022 Dept: 31

MOTION TO SET ASIDE/VACATE DISMISSAL IS CONTINUED

Background

On August 08, 2020, Plaintiff Sofia Arenas filed a Complaint against Antonio Llanos, Marina Avila (“Defendants”), and Does 1 to 10 for Partition of Real Property by Sale.

Plaintiff and Defendants acquired the subject real property as joint tenants with an undivided one-third (1/3) interest. Plaintiff filed a Complaint for Partition by Sale of Real Property.

On November 04, 2021, a Notice of Settlement was filed.

On February 10, 2022, an Order of Dismissal was filed.

On June 13, 2022, Plaintiff filed a Motion to Set Aside and Vacate the Dismissal and Leave to Defend the Action.

Defendants filed an Opposition on July 13, 2022.

No Reply has been filed.

Legal Standard

California Code of Civil Procedure section 473 subdivision (b) provides for both discretionary and mandatory relief. (See Pagnini v. Union Bank, N.A. (2018) 28 Cal.App.5th 298, 302.) Mandatory relief from default, default judgment, or dismissal is available based on an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect. (Minick v. City of Petaluma (2016) 3 Cal.App.5th 15, 25-26.) Discretionary relief is available based on the party’s own declaration or other evidence showing mistake, inadvertence, surprise, or excusable neglect. (Id.)

Under the discretionary relief provision, the application for 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.” (Code Civ. Proc., § 473 subd. (b).)

Discussion

According to Plaintiff, the Dismissal entered on February 10, 2020, was the result of a misunderstanding regarding the terms of the settlement with Defendants. Plaintiff provides the declaration of her attorney, J.B. Casas Jr., who attests that Defendants agreed to purchase Plaintiff’s 1/3 interest in the subject real property for a certain amount, resulting in the Notice of Settlement filed on November 04, 2021. Defendants subsequently applied for a loan in order to pay Plaintiff, but Plaintiff’s counsel misunderstood the terms of the settlement, and the amount was not what Plaintiff’s counsel understood the settlement amount to be. (See generally J.B. Casas Jr.) Accordingly, Plaintiff now seeks to set aside the dismissal.

Defendants oppose the Motion on the basis that the relief sought under section 473 was not made “within a reasonable time” and Plaintiff has failed to state facts to show that Plaintiff’s “mistake” or “surprise” or “excusable neglect” was within section 473.

Defendant asserts that there was no settlement agreement pursuant to Code of Civil Procedure section 664.6 because the terms were not definite or certain and any communications were a mere proposal of terms. On March 31, 2021, based on a Comparable Report Quick View, Plaintiff’s counsel estimated the subject property was worth $615,000.00. (Casas Decl. ¶ 3, Ex. A.) After paying the loan for three (3) years, Plaintiff’s counsel estimated the remaining mortgage balance to be about $460,000.00. (Id.) The equity was estimated to be at least $155,000.00, with Plaintiff willing to settle for $50,000.00. (Id.) On October 11, 2021, Defendants communicated a settlement proposal of $45,000.00, made pursuant to the Parties executing a Settlement Agreement and Mutual Release. (Acosta Decl. ¶ 4, Ex. B.)

Plaintiff’s Complaint was dismissed on February 10, 2022. Defendants applied for a loan that was approved on February 15, 2022. (Opp. at 2: 14-16.) However, the subject property was only valued at $630,000.00 with equity estimated to be about $128,601. (Acosta Decl. ¶ 6, Ex. D.) Taking into account closing costs of $13, 147, each party would be entitled to a fair distribution of $38,484.74. (Id.) Plaintiff’s position is that she would not settle for anything less than $50,000.00. (Acosta Decl. ¶ 5, Ex. C.)

The Court finds that Plaintiff’s counsel has provided sufficient evidence attesting to his “mistake, inadvertence, surprise, or excusable neglect” regarding the settlement between the parties. “Even in a case where the showing under section 473 is not strong, or where there is any doubt as to the setting aside of a default, such doubt should be resolved in favor of the application.” (Hambrick v. Hambrick (1946) 77 Cal.App.2d 372, 377.)

Moreover, since Plaintiff did not move for relief under section 473 until June 13, 2022, Defendant asserts the motion is untimely because the Motion was not made “within a reasonable time.” In Benjamin v. Dalmo Mfg. Co., 31 Cal.2d 523, 528 (1948), the “defendant furnished no explanation in the trial court, either by affidavit or testimony, for its dilatory procedure.” Accordingly, in denying relief to the defendant in Benjamin, under section 473, the California Supreme Court explained:

“Under this statute, in addition to being made within the six months' period, the application must be made within ‘a reasonable time,’ and what is a reasonable time in any case depends upon the circumstances of that particular case.' While in ‘the determination of that question, a large discretion is necessarily confided to (the trial) court’, there must be some showing some evidence as the basis for the exercise of such discretion.”

(Id. 31 Cal.2d at 528 [internal citations omitted.].)

Here, Plaintiff’s counsel offered no explanation as to why relief was not requested shortly after learning about Defendants’ loan and Defendants' settlement terms. Plaintiff asserts that the Motion is timely on the basis that it was made within 6 months. However, the Court needs “some explanation, by affidavit or testimony, of any extended delay” to allow the Court “to justify granting of the relief sought.” (Benjamin, supra, 31 Cal.2d at 529; see also Weitz v. Yankosky (1966) 63 Cal.2d 849.) Whether Defendants will be prejudiced by setting aside the dismissal is a consideration the Court may take into account in granting the motion, no such showing is “necessary until defendant had at least made some excuse for the delay in question.” (Id. at 532.)

Plaintiff’s counsel offers no explanation why there was a delay in bringing this Motion. Defendants have presented evidence that Plaintiff and Plaintiff’s counsel knew that Defendants had taken out a loan and knew Defendants’ proposed settlement terms on or around February 16, 2022, based on the loan obtained. (Acosta Decl. Ex. C.) Yet Plaintiff offers no explanation that the Court may consider as to why relief was not sought until June 13, 2022.

Therefore, there are no facts before the Court to permit a finding that Plaintiff’s motion was made “within a reasonable time.” (Code of Civ. Proc., § 473 subd. (b).)

Conclusion

The hearing is CONTINUED to September 26, 2022, to allow Plaintiff’s counsel to file an amended declaration explaining the reason for the delay in bringing this Motion.

The parties are strongly encouraged to attend all scheduled hearings virtually or by audio. Effective July 20, 2020, all matters will be scheduled virtually and/or with audio through the Court’s LACourtConnect technology. The parties are strongly encouraged to use LACourtConnect for all their matters. All masking protocols will be observed at the Courthouse and in the courtrooms.