Case Number: BC669593 Hearing Date: January 26, 2018 Dept: 46

Case Number: BC669593
US BANK ET AL VS WEST H&A LLC ET AL

Filing Date: 07/21/2017
Case Type: Other Real Property Rights Case

1/26/2018
Motion Set Aside Default/Judgment
NOTICE OF TENTATIVE RULING AND PROCEDURE
FOR SUBMISSION WITHOUT HEARING

TENTATIVE RULING

Defendants, West H&A LLC, Patrick Joseph Soria, and Warranted Effectuation of Substitute Transferee, Inc. Motions to Set Aside Default are GRANTED pursuant to CCP §473(b). Defendants to file a freestanding copy of the Answer(s) within 5 days (for scanning purposes). See discussion.

The default prove-up hearing scheduled for 2/16/2018 at 8:30 a.m. is advanced and vacated. The court sets a Case Management Conference for 3/26/2018 at 8:30 a.m. in Dept. 46. Parties are ordered to file Case Management Statements by 3/12/2018 and lodge a conformed copy in Dept. 46 by that date.

DISCUSSION

CCP § 473 reads in relevant part as follows:

“(b) 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. However, in the case of a judgment, dismissal, order, or other proceeding determining the ownership or right to possession of real or personal property, without extending the six-month period, when a notice in writing is personally served within the State of California both upon the party against whom the judgment, dismissal, order, or other proceeding has been taken, and upon his or her attorney of record, if any, notifying that party and his or her attorney of record, if any, that the order, judgment, dismissal, or other proceeding was taken against him or her and that any rights the party has to apply for relief under the provisions of Section 473 of the Code of Civil Procedure shall expire 90 days after service of the notice, then the application shall be made within 90 days after service of the notice upon the defaulting party or his or her attorney of record, if any, whichever service shall be later. No affidavit or declaration of merits shall be required of the moving party…

(c)(1) Whenever the court grants relief from a default, default judgment, or dismissal based on any of the provisions of this section, the court may do any of the following:

(A) Impose a penalty of no greater than one thousand dollars ($1,000) upon an offending attorney or party.

(B) Direct that an offending attorney pay an amount no greater than one thousand dollars ($1,000) to the State Bar Client Security Fund.

(C) Grant other relief as is appropriate.”

“The party moving for relief on the basis of “mistake, inadvertence, surprise, or excusable neglect” must show specific facts demonstrating that one of these conditions was met. [Hopkins & Carley v. Gens (2011) 200 CA4th 1401, 1410, 135 CR3d 1, 8-9—defendant’s burden to demonstrate “that due to some mistake, either of fact or of law, of himself or of his counsel, or through some inadvertence, surprise or neglect which may properly be considered excusable, the judgment or order from which he seeks relief should be reversed” (emphasis in original; internal quotes omitted)]…[Excusable neglect] is by far the most common ground for obtaining discretionary relief from default. The issue boils down to whether the moving party has shown a reasonable excuse for the default. [See Shapiro v. Clark (2008) 164 CA4th 1128, 1141-1142, 80 CR3d 398, 410—rejecting “categorical statements about what can be found to constitute excusable neglect”]. Id. at ¶¶ 5:310, 5:327 (emphasis in original).

“[T]he burden is on the moving party to show that the neglect was excusable: i.e., that the default could not have been avoided through the exercise of ordinary care. [Jackson v. Bank of America (1983) 141 CA3d 55, 58, 190 CR 78, 80—“the acts which brought about the default must have been the acts of a reasonably prudent person under the same circumstances”]… Evidence that the defendant was seriously ill, or feeble, or unable to understand that he was being served with process, is sufficient to justify discretionary relief under § 473(b). Such evidence shows “excusable neglect” in allowing default to occur. [See Kesselman v. Kesselman (1963) 212 CA2d 196, 207-208, 27 CR 769, 776-777]… it is not ground for relief that defendant failed to answer the complaint because he was indigent and couldn’t afford a lawyer…Defendant could have obtained help from legal aid offices, or appeared in forma pauperis…[Davis v. Thayer (1980) 113 CA3d 892, 905-906, 170 CR 328, 335].” Id. at ¶¶ 5:329-5:330, 5:334 (emphasis in original).

“[D]oubtful cases are usually resolved in favor of granting relief: “Because the law strongly favors trial and disposition on the merits, any doubts in applying section 473 must be resolved in favor of the party seeking relief from default.” [Elston v. City of Turlock (1985) 38 C3d 227, 233, 211 CR 416, 419 (emphasis added); see Fasuyi v. Permatex, Inc. (2008) 167 CA4th 681, 696, 84 CR3d 351, 361]… Where the party in default moves promptly to seek relief, and no prejudice to the opposing party will result from setting aside the default and letting the case go to trial on the merits, “very slight evidence will be required to justify a court in setting aside the default.” [Elston v. City of Turlock, supra, 38 C3d at 233, 211 CR at 419; Fasuyi v. Permatex, Inc., supra, 167 CA4th at 696, 84 CR3d at 361].” Id. at ¶¶ 5:401-5:402 (emphasis in original).

“The default and default judgment are separate procedures (¶ 5:4, 5:10). The latter may be set aside without disturbing the former. [Jonson v. Weinstein (1967) 249 CA2d 954, 958, 58 CR 32, 35; Behm v. Clear View Technologies (2015) 241 CA4th 1, 17, 193 CR3d 486, 498]… Such relief is appropriate where defendant has failed to prove “excusable neglect” or other ground for relief from default, but the default judgment as entered is erroneous (e.g., in excess of amount demanded in the complaint). [Jonson v. Weinstein, supra; Behm v. Clear View Technologies, supra, 241 CA4th at 17, 193 CR3d at 498—lack of adequate notice of punitive damages and excess damages rendered default judgment improper but had no effect on underlying default; and see Rutan v. Summit Sports, Inc. (1985) 173 CA3d 965, 970-971, 219 CR 381, 383-384—improper notice re sale of collateral rendered deficiency judgment improper but provided no ground for vacating earlier default]… But where the motion is filed more than six months after entry of default (though less than six months after entry of the default judgment), the default may not be set aside. Setting aside the default judgment without setting aside the default would be an “idle act” and thus not permitted even though technically timely. [Pulte Homes Corp. v. Williams Mechanical, Inc. (2016) 2 CA5th 267, 273, 206 CR3d 244, 249].” Id. at ¶¶ 5:413-5:414.1.

“An application for relief under § 473(b) requires both filing a notice of motion and service on the adverse party within the 6-month period. [Arambula v. Union Carbide Corp. (2005) 128 CA4th 333, 345, 26 CR3d 854, 861]… The 6-month limit is strictly enforced. Grounds for seeking relief under § 473(b) (“mistake, inadvertence, surprise or excusable neglect”) do not extend the time within which such relief must be sought. [Arambula v. Union Carbide Corp., supra, 128 CA4th at 345, 26 CR3d at 862].” Id. at ¶¶ 5:369-5:370 (emphasis in original).

Defendants have submitted evidence that Defendant Soria did not receive initial service because he was sub-served at an old address. (Declaration of Patrick Soria ¶2). Defendants LLC and WEST were served, but the papers pertaining to Defendant LLC were thrown away because Defendant Soria mistakenly thought they were duplicates (Id. ¶3). This is borne out by the fact that Defendant WEST did actually file an Answer, albeit 13 days too late to prevent default.

These are reasonable explanations and Defendant are therefore entitled to defend their case on the merits. Plaintiff has submitted only the Declaration of Roberto R. Martinez in opposition; that submission is two court days tardy under CCP § 1005(b) but the court exercises its discretion to consider it. The declaration of Mr. Martinez, however, contains nothing to contradict Defendants’ evidence.

Therefore, Defendants’ motion is GRANTED, and Defendants are ordered to file a freestanding copy of their Proposed Answer(s) forthwith.

IT IS SO ORDERED:

Frederick C. Shaller, Judge