Case Number: SC121140    Hearing Date: September 02, 2014    Dept: P

TENTATIVE RULING – DEPT. P

SEPT. 2, 2014 CALENDAR No: 2

SC121140 — KAM BEVERLY v. PORTIER, et al.
R/T SC121234)

DEFENDANTS’ MOTION TO VACATE DEFAULT JUDGMENT AND QUASH SERVICE OF SUMMONS

Evidentiary Matters

All evidence is admitted.

Merits

This was an unlawful detainer action. After obtaining Defendants’ default in late August 2013, Plaintiff obtained a judgement for possession only. Shortly thereafter, on October 21, 2013, Plaintiff obtained a court judgment by default against Defendants in the amount of over $276,000.00. Defendants seek an order vacating the default on a host of grounds, including the discretionary provision of CCP 473(b), being misled by Plaintiff’s counsel (who allegedly took their default with “quiet speed” knowing that they were out of the country), premature filing of the action prior to expiration of the three- day notice, and purported lack of valid substituted service of the summons and complaint. The Court will deny the motion.

As is well-stated in the opposition brief – as to which Defendants failed to file a reply brief – the motion mis-states the applicable facts and the applicable law. The Court will not vacate the judgment and allow defendants to answer.

Usually, security deposits are accounted for differently than rent; separately returned after inspection, etc. However, in this case the opposition brief concedes that the full amount of the security deposit is due to the former tenant and acknowledges that Plaintiff failed to credit Defendants with their $160,000.00 security deposit even though paragraph 4B of the Lease so provides. [Somewhat curiously, it does not appear that the UD-116 “Declaration for Default Judgment by Court” form (filed by Plaintiff on October 21, 2013) contains a space to account for a security deposit credit.] Accordingly, the Court will enter a reduced, amended judgment which reflects a credit for the security deposit.

Motion to vacate is denied with prejudice to any application or motion, however denominated, which seeks to directly or indirectly vacate and default or any default judgment in this action. The Court, on its own motion pursuant to CCP 128, modifies the money judgment entered on October 21, 2013 such that Defendants receive the credit due for their $160,000.00 security deposit.

On or before September 5, 2014, Plaintiff is to serve, and lodge directly in this department, a proposed amended judgment. Attorney’s fees and interest are to be calculated based on the revised (i.e., reduced) amount of the judgment and plaintiff is to file a declaration with those calculations shown in detail by the same date.

ADMONISHMENT RE CAPTIONING OF DOCUMENTS

The parties should take note that the two related cases pending before this Court are just that – related. Compare, CRC 3.300 (relation of cases) with CRC 3.350 (consolidation of cases). The breach of lease action (SC121234) is related to this unlawful detainer case, but the cases have not been consolidated (nor will they be, at this point).

Nonetheless, Plaintiff filed five documents in this action which should have been filed in the breach of lease action; Defendants did the same with regard to their CMS filed on December 5, 2013. The Court has removed the mis-filed documents from the file in this action, and has interlineated the necessary corrections. The court clerk is to place the mis-filed documents in the SC121234 file and make the appropriate changes in Sustain.

The mis-captioning/mis-filing of documents has caused much needless confusion and makework for the Court and its staff. Counsel in this action and the related action are admonished of the need to file their documents in the proper actions, bearing the correct case number and correct case caption. Documents which fail to comply may be stricken.

NOTICE

_______ shall give notice of today’s rulings to counsel in both of the related actions, and timely file proof of service thereof in both of the related actions, pursuant to CCP 1019.5 and CRC 3.1312. A copy of this tentative ruling is to be attached to the notice of ruling.