Case Number: KC069347 Hearing Date: January 12, 2018 Dept: J

Re: Dalton Realty LLC v. Donald Lechuga (KC069347)

MOTION TO SET ASIDE DEFAULT

Moving Party: Defendant Donald Lechuga

Respondent: Plaintiff Dalton Realty LLC

POS: Moving OK; Opposing OK

This lawsuit arises out of a failed real estate transaction involving the property located at 171 N. Dalton Avenue in Azusa. The complaint, filed on 5/26/17, asserts causes of action against Defendants Donald Lechuga (“Lechuga”) and Does 1-50 for:

Breach of Contract

Specific Performance

On 7/6/17, Lechuga’s default was entered. On 8/15/17, the court’s default judgment was filed. On 11/28/17, the court vacated its 8/15/17 judgment (i.e., in connection with plaintiff’s motion for order amending judgment due to inadvertent drafting error pursuant to CCP § 473 and the inherent power of court). A default prove-up hearing is set for 1/12/18.

Defendant Donald Lechuga (“defendant”) now moves the court for an order vacating and setting aside the default taken against him on 7/6/17, on the basis of mistake, inadvertence and/or excusable neglect.

“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…” CCP § 473(b).

“The statute’s ‘broad remedial provisions’ (Carrasco v. Craft (1985) 164 Cal.App.3d 796, 803) are to be ‘liberally applied to carry out the policy of permitting trial on the merits’ (5 Witkin, Cal. Procedure (5th ed. 2008) Attack on Judgment in the Trial Court, § 144, p. 736). The party seeking relief, however, bears the burden of proof in establishing a right to relief. (Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1205). The burden is a ‘”’double’”’ one: the moving party ‘”’must show a satisfactory excuse for his default, and he must show diligence in making the motion after discovery of the default.’”’ (Huh v. Wang [(2007)] 158 Cal.App.4th 1406, 1420). Whether the moving party has successfully carried this burden is a question entrusted in the first instance to the discretion of the trial court; its ruling will not be disturbed in the absence of a demonstrated abuse of that discretion. (Rodriguez v. Henard (2009) 174 Cal.App.4th 529, 534-535; Shapiro v. Clark (2008) 164 Cal.App.4th 1128, 139-1140).” Hopkins & Carley v. Gens (2011) 200 Cal.App.4th 1401, 1410.

“It is simply not enough to assert a general state of misapprehension or ignorance on some subject bearing on a possible defense.” Id. In order for relief to be granted based on a party’s mistake of fact under section 473(b), the defendant must show that he or she “was mistaken as to some fact material to the defendant’s duty to respond, by reason of which defendant failed to make a timely response.” Weil & Brown, et al., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2017) ¶ 5:312. Relief may also be granted based on a mistake of law; with that said, “[a]lthough an honest mistake of law is a valid ground for relief where a problem is complex and debatable, ignorance of the law coupled with negligence in ascertaining it will certainly sustain a finding denying relief.” A&S Air Conditioning v. John J. Moore Co. (1960) 184 Cal.App.2d 617, 620.

“A party seeking relief under section 473 on the grounds of excusable neglect bears the burden of demonstrating that the neglect was excusable in order to secure relief. (Cochran v. Linn (1984) 159 Cal.App.3d 245, 252). The test of whether neglect was excusable is whether ‘”a reasonably prudent person under the same or similar circumstances” might have made the same error. [Citations.]’ (Bettencourt v. Los Rios Community College Dist. (1986) 42 Cal.3d 270, 276).” Luri v. Greenwald (2003) 107 Cal.App.4th 1119, 1128. “[W]here the defendant, with full knowledge of the proceedings, and without being misled by the opposing party or counsel, fails to take action to protect his interests until after the default, it is an abuse of discretion to set the default aside.” Yarbrough v. Yarbrough (1956) 144 Cal.App.2d 610, 615.

Defendant attests that this is the first time he has ever been sued and that he is not familiar with court process. (Defendant’s Decl., ¶ 2). He acknowledges having received service of this lawsuit, as well as a “Notice of Case Management Conference” (“Notice”) set for 10/13/17. (Id., ¶ 3). He states that although the Notice has a warning that it does not exempt defendant from filing a responsive pleading, he did not know what that meant. (Id.). Defendant attests that he called the court on 6/18/17 and spoke with the clerk, who confirmed that this case was set for 10/13/17. (Id., ¶ 4). He understood from this phone call that he should go to court on 10/13/17. (Id.). He first met with his attorney on 10/12/17 to obtain help for the 10/13/17 hearing, at which time his attorney explained to him that the case was over by default and that there would be no 10/13/17 hearing. (Id., ¶ 5).

The foregoing does not constitute mistake, inadvertence or excusable neglect under CCP § 473; accordingly, the motion is denied.