17-CIV-02347 JACQUELINE WENDLING vs. PESCADERO APARTMENTS, et al.

JACQUELINE WENDLING NIKOLAUS W. REED

SARES REGIS GROUP OPERATING, INC. DAVID V. ROTH

5. DEFENDANT SARES REGIS GROUP OPERATING, INC.’s motion TO SET ASIDE DEFAULT

TENTATIVE RULING:

The Motion of Defendant Sares Regis Group Operating, Inc. (“Defendant”) to Set Aside Default is DENIED without prejudice.

Relief under Code of Civil Procedure section 473(b) from entry of default may be based either on an attorney affidavit of fault, which is mandatory, or based on a showing of mistake, inadvertence, surprise or excusable neglect, which is discretionary. (See C.C.P. § 473(b).)

The declaration of Ann Kariuki (“counsel”) fails to set forth facts supporting that mandatory relief is warranted here based on an attorney declaration of fault. Specifically, counsel fails to establish that she represented Defendant at the time default was entered, such that the entry of default was the result of counsel’s mistake of fact, inadvertence or excusable neglect. Counsel states only that she learned of “a responsibility to appear on behalf of the Sares entities [Defendant].” (Kariuki Decl. ¶ 4.) However, counsel does not state that she represented Defendant at the time default was entered.

Furthermore, Defendant has not established that discretionary relief is warranted under section 473(b). A motion for relief under section 473(b) shall be made within a reasonable time, not to exceed six months from entry of the default. (See C.C.P. § 473(b).) Counsel’s declaration establishes that she learned that default had been entered against several entities at a case management conference on September 28, 2017. (Kariuki Decl. ¶ 5.) Despite this knowledge though, this motion was not filed to set aside the default until February 20, 2018, almost five months later. Although counsel attempted to file an answer on behalf of Defendant in the interim, this answer was filed on December 4, 2017, well after the default had been entered. (See Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc. (1984) 155 Cal.App.3d 381, 385-386 [entry of default terminates a defendant’s rights to take any further steps in the action until either default is set aside or a default judgment is entered].) Counsel offers no explanation as to why she attempted to file an answer when she knew that default had been entered. The Court therefore finds that Defendant fails to establish that this motion was brought within a reasonable time.

The Court notes that Plaintiff’s opposition was timely served on Defendant, but was filed late with the court only four court days before the hearing. (See C.C.P. §1005(b).) Since the only prejudice was to the Court and not Defendant, the Court has considered the opposition this time. In the future, though, Plaintiff’s counsel is cautioned to timely file and serve his papers or else the Court will be inclined to disregard them in the future.

If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to Rule 3.1308(a)(1), adopted by Local Rule 3.10, effective immediately, and no formal order pursuant to Rule 3.1312 or any other notice is required as the tentative ruling affords sufficient notice to the parties.

6. PESCADERO LLC’s motion TO SET ASIDE DEFAULT

TENTATIVE RULING:

The unopposed Motion of Defendant Pescadero LLC, erroneously sued as Pescadero Apartments, (“Defendant”) to Set Aside Default, and Motion to Quash Service of Summons and Complaint, is ruled on as follows:

Defendant’s Motion to Set Aside the Default is DENIED without prejudice.

Relief under Code of Civil Procedure section 473(b) from entry of default may be based either on an attorney affidavit of fault, which is mandatory, or based on a showing of mistake, inadvertence, surprise or excusable neglect, which is discretionary. (See C.C.P. § 473(b).)

The declaration of Ann Kariuki (“counsel”) fails to set forth facts supporting that mandatory relief is warranted here based on an attorney declaration of fault. Specifically, counsel fails to establish that she represented Defendant at the time default was entered, such that the entry of default was the result of counsel’s mistake of fact, inadvertence or excusable neglect.

Furthermore, Defendant has not established that discretionary relief is warranted under section 473(b). A motion for relief under section 473(b) shall be made within a reasonable time, not to exceed six months from entry of the default. (See C.C.P. § 473(b).) Counsel’s declaration establishes that she learned that default had been entered against several entities, including Defendant, at a case management conference on September 28, 2017. (Kariuki Decl. ¶ 5.) Despite this knowledge though, this motion was not filed to set aside the default until February 20, 2018, almost five months later. Although counsel attempted to file an answer on behalf of Defendant in the interim, this answer was filed on December 4, 2017, well after the default had been entered. (See Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc. (1984) 155 Cal.App.3d 381, 385-386 [entry of default terminates a defendant’s rights to take any further steps in the action until either default is set aside or a default judgment is entered].) Counsel offers no explanation as to why she filed attempted to file an answer when she knew that default had been entered. The court therefore finds that Defendant fails to establish that this motion was brought within a reasonable time.

Accordingly, the Court does not reach Defendant’s Motion to Quash Service of Summons and Complaint because default has not been set aside. Moreover, Defendant’s Motion to Quash is improperly brought with this motion. Application for relief is to be accompanied by a copy of the answer or other proposed pleading to be filed therein. (See C.C.P. § 473(b).) Thus, Defendant should have instead filed a proposed Motion to Quash with this motion which would then be filed if the Court granted the motion to set aside default.