Caldwell v Bromley
Motion to Set Aside Entry of Default
| Calendar: | 7 | ||
| Case No.: | 19BBCV00488 | ||
| Hearing Date: | July 26, 2019 | ||
| Action Filed: | June 03, 2019 | ||
| Trial Date: | Not Set |
| MP: | Defendant Yvonne S. Bromley |
| RP: | Plaintiffs Christopher Caldwell; Tracey Berlin |
ALLEGATIONS:
The instant action arises from the lease for the real property commonly known as 6501 Lankershim Blvd., North Hollywood, CA 91606 (the “Property”), owned by Plaintiffs Christopher Caldwell and Tracey Berlin, Co-Trustees of the Caldwell Family Qualified Terminal Interest Property Trust, as to an undivided 50% interest; and Lillian Siegal, Trustee of the Stanley and Lillian Siegal 2005 Trust, as to an undivided 50% interest, as tenants in common (the “Plaintiffs”), and allegedly leased by Defendant Yvonne S. Bromley (“Bromley”).
In Plaintiffs’ June 03, 2019, Complaint, they allege that Defendant is the lessee of the Property, and owes $22,000.00 in late rents, along with a continuing $183.33 in daily rent. The agreement was allegedly entered into on February 01, 2016, by Defendant’s predecessor in interest, Phil Reyes, an individual, and was a lease for a term of 3-years with a monthly rent of $5,500.00 per month, as provided in a written agreement (which is not included in the complaint).
PRESENTATION:
After Plaintiffs’ filing the Complaint on June 03, 2019, they provided proof of service on June 10, 2019, and thereafter requested entry of default on June 11, 2019. The Entry of Default was entered on that same day, June 11, 2019, and subsequently mailed to Defendant on the same day – making the effective service date of the entry of default June 16, 2019, pursuant to Code of Civ. Proc. §1005.
The instant motion to set aside default was filed ex parte on June 25, 2019. According to the representations in the ex parte application, specifically in the Declaration of Kevin Sawkins, Defendant’s counsel attempted to meet and confer with Plaintiffs’ counsel in order to stipulate to the withdrawal of the Entry of Default on June 20, 2019. When Defendant received no response, Defendant’s counsel informed Plaintiffs’ counsel of Defendant’s intent to file a motion to set aside on an ex parte basis on June 24, 2019, and Plaintiffs’ counsel confirmed receipt of the motion on June 25, 2019, at 5:52AM.
The Court heard oral arguments on the ex parte motion to set aside on June 26, 2019, and the motion was continued to permit the filing of opposition and reply brief to July 26, 2019. Plaintiffs filed opposition to the motion to set aside on July 12, 2019, and Bromley submitted a reply memorandum on July 19, 2019.
RELIEF REQUESTED:
Defendant Yvonne S. Bromley moves pursuant to Code of Civ. Proc. §473(b) to set aside the entry of default.
DISCUSSION:
Standard of Review – Motion to Set Aside/Vacate Default – Code Civ. Proc. §473(b) provides that the trial 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.” In order for the Court to grant discretionary relief, the moving party must (1) “be accompanied by a copy of the answer or other pleading proposed to be filed therein,” (2) “be made within a reasonable time, in no case exceeding six months,” but (3) “[n]o affidavit or declaration of merits shall be required of the moving party.” Code Civ. Proc. §473(b). Whether the filing is made within a reasonable time is a matter left to the discretion of the trial court, and depends upon the specific circumstances of the delay, including the cause for the attorney’s mistake, inadvertence, surprise, or excusable neglect. Minick v. City of Petaluma (2016) 3 Cal. App. 5th 15; Comunidad En Accion v. Los Angeles City Council (2013) 219 Cal. App. 4th 1116, 1133–34.
In addition to the discretionary provisions of Code Civ. Proc. §473(b), “the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.” The purpose of the mandatory provision is to provide a client the opportunity to litigate a claim on its merits even though their attorney made a mistake in representation. See Yeap v. Leake (1997) 60 Cal. App. 4th 591 abrogated by Hossain v. Hossain (2007) 157 Cal. App. 4th 454. It mandates that the court grant relief unless it finds that the default was not in fact caused by lawyer error – which functions as both a credibility and causation testing device. Milton v. Perceptual Development Corp. (1997) 53 Cal. App. 4th 861.
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Here, Defendant’s request for relief is based on the discretionary provision, and is based on Defendant’s mistake, inadvertence, and excusable neglect in failing to obtain counsel immediately to defend the instant action. Defendant represents that the reason for the failure to defend is because of Defendant’s belief that the lease agreement is signed by a corporate entity, not Defendant personally, and that Defendant’s understanding was that the action would be mooted by her and the alleged signatory company vacating the premises – which Defendant represents is currently occurring. Motion, 4:1-9. Defendant further represents that she took swift action upon the entry of default in retaining counsel and moving to set aside the entry of default in this case. Id. Finally, Defendant argues that the Court should exercise its discretion in granting the instant motion pursuant to California’s policy to adjudicate matters on their merits, the broad grant of discretion, the liberal construction of Code of Civ. Proc. §473(b) in permitting relief, and the meritorious defenses that Defendant has to the action.
The Court notes that the motion is in the proper form, contains a proposed Answer to the Complaint, and, presuming Defendant is accurately representing her intention to surrender the Property, may soon be transformed into an action for money-only rather than an unlawful detainer action. Further, and based on the 8-day turn around in the statutory receipt of the entry of default and the instant motion to set aside, there is no doubt that Defendant’s motion is timely in addition to properly grounded. See, e.g., Minick v. City of Petaluma (2016) 3 Cal. App. 5th 15, 33-34 (5-week delay acceptable when attorney did not appreciate effects of medication on ability to practice law); Freeman v. Goldberg (1961) 55 Cal. 2d 622, 625 (10-week delay acceptable when plaintiff showed evidence that the mail box used to file opposition was not serviced on time by the USPS); Hallett v. Slaughter (1943) 22 Cal. 2d 552, 554, 557 (7-week delay acceptable when plaintiff filed opposition that was never delivered by the USPS); Outdoor Imports, Inc. v. Stanoff (1970) 7 Cal. App. 3d 518, 523–524 (9-week delay acceptable when defendant reasonably believed the lawsuit was unfiled).
Plaintiffs oppose the motion on the grounds that Bromley is the successor in interest to the decedent leaseholder – Defendant’s father Phil Reyes – and that there was no mistake as to Bromley’s status in the action pursuant to several meet and confer conferences engaged in by the parties prior to filing the litigation and entry of default. Opposition, pp. 3-5. Ultimately, Plaintiffs’ contention is that Defendant made a conscious decision to ignore the litigation, and that there was no confusion about Defendant’s status in the litigation, as either a direct leaseholder or as an occupant, prior to the entry of default.
On reply, Defendant asserts that Plaintiffs have conceded that the signatory to the contract is not the Defendant, but is Defendant’s father, Phil Reyes. Further, Defendant proffers information by way of declaration that Phil Reyes is alive, contending that this makes the alleged basis for this action against Bromley as an individual meritless, and the default should be set aside.
Under the instant circumstances, it is apparent that there is sufficient confusion over the real parties in interest that Defendant’s failure to timely respond to the unlawful detainer action is understandable and excusable. California’s strong policy for disposing a case on its merits further militates against the entry of default judgment here. See, e.g., Elston v. City of Turlock (1985) 38 Cal. 3d 227, 235 (“Where, as here, the trial court denies the motion for relief from default, the strong policy in favor of trial on the merits conflicts with the general rule of deference to the trial court’s exercise of discretion. [Citation.] Unless inexcusable neglect [of the party, not the attorney in the discretionary provision] is clear, the policy favoring trial on the merits prevails. [Citation.] Doubts are resolved in favor of the application for relief from default [Citation.], and reversal of an order denying relief results [Citation.] Reversal is particularly appropriate where relieving the default will not seriously prejudice the opposing party. [Citations.]”).
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RULING:
Accordingly, the Court will grant the instant motion and vacate the entry of default.
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In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records.
ORDER
Defendant Yvonne S. Bromley’s Motion to Set Aside Entry of Default came on regularly for hearing on July 26, 2019, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:
The motion is: GRANTED IN ITS ENTIRETY