Case Number: BC614167 Hearing Date: March 23, 2018 Dept: 53

patricia infante tapia VS. refugio rios ET. AL.; BC614167, MARCH 23, 2018

[tentative] order re: MOTION FOR ORDER SETTING ASIDE AND VACATING DEFAULT AND DEFAULT JUDGMENT

Defendant REFUGIO RIOS’ motion for order setting aside and vacating default and default judgment is GRANTED.

Discussion

Defendant Refugio Rios (“Rios”) brings this motion to set aside a default, which was entered on June 8, 2016, and default judgment, which was entered against him on September 7, 2017, on the basis of extrinsic mistake. Rios concedes that he was served with a copy of the Summons and Complaint on or about April 27, 2016. (Rios Decl., ¶ 7.) Rios states that he immediately called his attorney regarding the Summons and Complaint, and thereafter faxed a copy of the Summons and Complaint to his attorney (Rios Decl., ¶ 7.) Rios’ then-attorney does not recall receiving the Summons and Complaint (Lieber Decl., ¶ 5.) Rios states that he attempted to follow up with his then-attorney regarding the Summons and Complaint on a number of occasions but did not receive a response or status update. (Rios Decl., ¶ 8.) Rios contends that his lack of sophistication regarding civil lawsuits led him to believe that the lack of communication suggested a slow legal process or that settlement was ongoing/delayed. (Rios Decl., ¶ 9.) Rios states that he did not receive any communication from his then-attorney or any other party (including the Request for Entry of Default) until he received a copy of the Interlocutory Judgment of Partition and Ejectment filed September 7, 2017. (Rios Decl., ¶ 10.) Immediately upon receipt, Rios engaged new counsel. (Rios Decl., ¶ 11.) The instant motion to set aside was filed on November 20, 2017.

CCP §473(b) provides in pertinent:

“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.”

“The six-month time limit for granting statutory relief is jurisdictional and the court may not consider a motion for relief made after that period has elapsed” (Manson, Iver & York v. Black (2009) 176 Cal.App.4th 36, 42.) After that period, the court is without jurisdiction to grant relief. (Ibid.) Only where there has been some extrinsic fraud or mistake may the Court set aside a judgment based on default after the six-month time limit. (Id. at 47.) Extrinsic mistake occurs “when circumstances extrinsic to the litigation have unfairly cost a party a hearing on the merits.” (Ibid.) It occurs as the result of the “excusable neglect of the defaulting party to appear and present his claim or defense.” (Ibid.)

The Court finds that circumstances indicating extrinsic mistake have been shown here. Rios received the Summons and Complaint and believed that his attorney was handling it. He did not receive the Request for Entry of Default, and when he became aware of the Judgment, he promptly sought relief. Further, the Court finds that there is little prejudice to Plaintiff as a result of setting aside the default.

Plaintiff contends that Rios has failed to show that he has a meritorious defense to Plaintiff’s action, citing to Stiles v. Wallis (1983) 147 Cal.App.3d 1143, 1147-1148, for the proposition that in order to seek equitable relief from default judgment, the defaulted party must “demonstrate that it has a meritorious case.” The Complaint asserts causes of action for partition and ejectment. Partition of concurrent interests is a matter of right unless barred by waiver. (Code Civ. Proc., § 872.710(b).) Rios acknowledges that he holds title jointly with Plaintiff. (Rios Decl., ¶ 13.) “[T]he right of partition may be waived by contract, either express or implied.” (LEG Investments v. Boxler (2010) 183 Cal.App.4th 484, 493.) Evidence Code section 662 provides that the “owner of the legal title to property is presumed to be the owner of the full beneficial title” and that the “presumption may be rebutted only by clear and convincing proof.” (Evid. Code, § 662.) Rios attests in his declaration, though not explicitly, that Plaintiff waived her right to partition by agreeing to accept $50,000 in cash (out of a refinance of the property) for her interest in the subject property. (Rios Decl., ¶ 16.) Rios also attests to paying the property taxes, the mortgage, the property insurance, the repairs and maintenance, and the improvements on the subject property. (Rios Decl., ¶ 18.) Plaintiff points out that the evidence supporting the purported refinance shows that Plaintiff was a co-borrower in the refinance. (Rios Decl., Ex. 7.) Although Rios raises a request for contribution, contribution itself is not a defense to Plaintiff’s claims. (See Code Civ. Proc, § 872.430.) Finally, Plaintiff argues that Rios’ exclusive occupancy of the subject property for more than 30 years would offset the money he has paid into the property. (See Hunter v. Schultz (1966) 241 Cal.App.2d 24, 32.) The Court finds that there is sufficient prima facie evidence that a “different result would probably be reached.” (Transit Ads, Inc. v. Tanner Motor Livery, Ltd. (1969) 270 Cal.App.2d 275, 282.) Taking into account the possibility of offset, a result different from the one reached in the default judgment is certainly probable. In a partition action, the court may order “allowance, accounting, contribution, or other compensatory adjustment among the parties according to the principles of equity.” (Code Civ. Proc., § 872.140.)

CONCLUSION

Accordingly, Defendant Refugio Rios’ motion to set aside and vacate default and default judgment is GRANTED.

Rios is to provide notice of this ruling.

DATED: March 23, 2018

_____________________________

Howard L. Halm

Judge of the Superior Court