Motion to Set Aside Order (Judge Michael E. Whitaker)

Case Number: 25SMCV00222    Hearing Date: October 6, 2025    Dept: 207

TENTATIVE RULING

DEPARTMENT                      207

HEARING DATE                   October 6, 2025

CASE NUMBER                    25SMCV00222

MOTION                                Motion to Set Aside Order

MOVING PARTIES               Plaintiffs Shirley Darvish & Sam Tabibian

OPPOSING PARTIES            Defendants John F Fiacco, individually and as trustee of the Fiacco Family Trust and Carol Fiacco

MOTION

This case arises from a landlord/tenant dispute.  On January 15, 2025, Plaintiffs Shirley Darvish and Sam Tabibian (“Plaintiffs”) brought suit against Defendants John F. Fiacco, individually and as trustee of the Fiacco Family Trust (“John”) and Carol Fiacco (“Carol”) (together, “Defendants”) alleging eight causes of action as follows:

(1)   Nuisance

(2)   Negligence

(3)   Breach of Implied Warranty of Habitability

(4)   Breach of Written Contract

(5)   Intentional Infliction of Emotional Distress

(6)   Constructive Eviction

(7)   Breach of Quiet Enjoyment

(8)   Contractual Fraud

On August 5, 2025, the Court sustained Defendant Carol’s demurrer to the fifth and eighth causes of action without leave to amend and granted Defendant Carol’s motion to strike punitive damages without leave to amend.  Both motions were unopposed.

Plaintiffs now move to set aside the August 5th Order.  Defendants oppose the motion and Plaintiffs reply.

ANALYSIS

  1.           DISCRETIONARY AND MANDATORY RELIEF

“Proceeding to judgment in the absence of a party is an extraordinary and disfavored practice in Anglo–American jurisprudence:  The policy of the law is to have every litigated case tried upon its merits, and it looks with disfavor upon a party, who, regardless of the merits of the case, attempts to take advantage of the mistake, surprise, inadvertence, or neglect of his adversary.”  (Au-Yang v. Barton (1999) 21 Cal.4th 958, 963 [cleaned up].)

Code of Civil procedure section 473 “includes a discretionary provision, which applies permissively, and a mandatory provision, which applies as of right.” (Minick v. City of Petaluma (2016) 3 Cal.App.5th 15, 25 (hereafter Minick).)  “Section 473 is a remedial statute to be “applied liberally” in favor of relief if the opposing party will not suffer prejudice.  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.  Unless inexcusable neglect is clear, the policy favoring trial on the merits prevails.”  (Minick, supra, 3 Cal.App.5th at p. 24 [cleaned up].)

The party or the legal representative must seek such relief “within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (Code Civ. Proc., § 473, subd. (b); see Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980 [“because more than six months had elapsed from the entry of default, and hence relief under section 473 was unavailable”]; People v. The North River Ins. Co. (2011) 200 Ca.App.4th 712, 721 [motion for relief under section 473 must be brought “within a reasonable time, in no case exceeding six months”]).  “The six-month limit is mandatory; a court has no authority to grant relief under section 473, subdivision (b), unless an application is made within the six-month period.”  (Arambula v. Union Carbide Corp. (2005) 128 Cal.App.4th 333, 340, citations omitted.)

  1. DISCRETIONARY RELIEF

Per Code of Civil Procedure section 473, subdivision (b), a court may “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.”

  1. MANDATORY RELIEF

Notwithstanding any other requirements of this section, 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.

(Code Civ. Proc., § 473, subd. (b).)  “In considering whether the trial court properly denied relief under section 473(b), the first question is the sufficiency of defendants’ showing of attorney fault, if believed, to trigger the mandatory relief provisions of that statute.”  (Standard Microsystems Corp. v. Winbond Electronics Corp. (2009) 179 Cal.App.4th 868, 896, disapproved on other grounds by Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830 (hereafter Standard).)  “Under section 473(b), a party is entitled to relief from a default and resulting judgment whenever, on timely application for relief, his attorney ‘attest[s] to his or her mistake, inadvertence, surprise, or neglect’ in connection with the default or the judgment.”  (Ibid.)

            In support of the motion, Plaintiffs advance the attorney declaration of Troy M. Mueller, which provides:

  1. On July 2, 2025 at 4:43 p.m., Defendant, Carol Fiacco served me via email with a demurrer and motion to strike portions of the complaint.
  2. I do not remember now when I saw the email, but I know I did not open the attachments at that time because I was focused on my trial. While I was aware that Defendants were filing a demurrer, I did not expect that when served with a demurrer I would have just a few weeks to oppose it as demurrers are regularly unavailable to be heard in fewer than 60 days.
  3. Had I read the moving papers when they were served, I would have realized that the hearing date set for those motions was August 5, 2025.
  4. From July 7, 2025 to July 21, 2025, I was engaged in a jury trial in California Superior Court for the County of Los Angeles, Case No. 20STCV02166.
  5. I was out of the office on July 22, 2025 and returned to the office on July 23, 2025 at which time I began working to catch up on matters I had missed while engaged in trial.
  6. Unfortunately, July 23, 2025 was the opposition due date, but I did not file opposition papers because I had not read the moving papers at that time, had not calendared the hearing and opposition dates, and did not realize the opposition was due on that date.
  7. While in the process of catching up from being out of the office for trial, I then began to feel ill. On July 30, 2025, I left the office with flu-like symptoms and the following day tested positive for COVID-19. I continued to test positive that week and was out sick until August 4, 2025, although I continued to do whatever I could to not fall further behind on my work.
  8. On August 4, 2025, I received an email from a third-party service offering special appearance counsel services for the demurrer hearing. At this point, I realized the hearing was on calendar, but it was too late to file papers requesting a continuance of the hearing and additional time.
  9. That same day, August 4, 2025, the court issued a tentative order sustaining Defendant’s demurrer without leave to amend and granting Defendant’s motion to strike as unopposed.
  10. On August 5, 2025, I appeared remotely for the hearing on Defendant’s motions, informed the court of my trial and illness, and orally requested a continuance to prepare a responsive pleading.
  11. The court allowed Defense counsel refused to capitulate to my request for accommodation, but notably offered no showing or argument of any prejudice to the defense from that request. Indeed, I am aware of no prejudice that would be suffered by the defense if this request were granted.
  12. The court adopted its tentative ruling and sustained demurrer to Plaintiff’s fifth and eight causes of action and struck Plaintiffs’ punitive damages allegations without leave to amend.
  13. The failure to oppose the motion was entirely my fault and in no way the fault of the Plaintiffs, Shirley Darvish and Sam Tabibian.
  14. Attached hereto as Exhibits A and B is a proposed oppositions that I would and could file to the Defendants’ motion if permitted.

(Mueller Decl. ¶¶ 3-16.)

            To the extent Plaintiffs seek mandatory relief under Code of Civil Procedure section 473, subdivision (b) due to their attorney’s fault, such relief is unavailable, as a failure to respond to discovery, to oppose motions, or to attend hearings is not a “default” entered by the clerk of the court after a defendant fails to answer a complaint.  (English v. IKON Business Solutions, Inc. (2001) 94 Cal.App.4th 130, 143 [“the mandatory provision of section 473(b) applies to a “default” entered by the clerk (or the court) when a defendant fails to answer a complaint, not to every “omission” or “failure” in the course of an action that might be characterized as a “default” under the more general meaning of the word.”)

            To the extent Plaintiffs seek discretionary relief, the Court does not find counsel’s neglect was excusable.  Counsel admits having been duly served with the moving papers, yet failed to open the attachments, review, and calendar the opposition deadline, or otherwise request a continuance of the hearing, in light of counsel’s trial schedule.  Nor did counsel file a late opposition or otherwise request a continuance of the hearing in the week between July 23 when counsel returned to the office and July 30, when counsel fell ill with COVID-19.

            As such, the Court does not find Plaintiffs are entitled to either mandatory or discretionary relief under Section 473.

CONCLUSION

            For the foregoing reasons, the Court denies Plaintiffs’ motion to set aside the Court’s August 5 order.

            Plaintiffs shall provide notice of the Court’s order and file the notice with a proof of service forthwith.

DATED: October 6, 2025                                                      _________/s/__________________

Michael E. Whitaker

                                                                                          Judge of the Superior Court