FML MANAGEMENT CORP. VS GENARO J. BAUTISTA, ET AL.

Tentative Rulings

Case Number: 19STLC01907    Hearing Date: November 05, 2020    Dept: 25

HEARING DATE: Thu., November 5, 2020 JUDGE /DEPT: Blancarte/25

CASE NAME: FML Management Corp. v. Bautista, et al. COMPL. FILED: 02-22-19

CASE NUMBER: 19STLC01907 JUDGMENT: 07-15-20

PROCEEDINGS: MOTION FOR ORDER VACATING AND SETTING ASIDE DEFAULT JUDGMENT

MOVING PARTY: Defendant Genaro Bautista, in pro per

RESP. PARTY: None

MOTION TO SET ASIDE DEFAULT AND DEFAULT JUDGMENT

(CCP § 473, 473.5)

TENTATIVE RULING:

Defendant Genaro Bautista’s Motion for Order Vacating and Setting Aside Default Judgment is DENIED.

SERVICE:

[X] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[X] Correct Address (CCP §§ 1013, 1013a) OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

OPPOSITION: None filed as of November 3, 2020 [ ] Late [X] None

REPLY: None filed as of November 3, 2020 [ ] Late [X] None

ANALYSIS:

1. Background

On February 22, 2019, Plaintiff FML Management Corp. (“Plaintiff”) filed an action for breach of a lease agreement against Defendants Genaro J. Bautista (“Bautista”), Norma E. Funes, and Martha Rivera (collectively, “Defendants”).

Defendant Bautista filed a demurrer to the Complaint on May 2, 2019. At the June 4, 2019 hearing on the demurrer, the Court noted that there was no appearance or submission by Defendant Bautista. (6/4/19 Minute Order.) As a result, the Court placed the demurrer off calendar. (Id.) The following day, Plaintiff filed a Request for Entry of Default as to Defendant Bautista, which was entered the same day. Seemingly unaware that the Court placed the demurrer off calendar, Defendant Bautista served notice of the Court’s tentative ruling granting the demurrer on June 6, 2019.

On July 15, 2020, a default judgment was entered against Defendants in the amount of $9,744.13. (7/15/20 Judgment.)

On September 8, 2020, Defendant Bautista filed the instant Motion for Order Vacating and Setting Aside Default and Default Judgment (the “Motion”). To date, Plaintiff has not filed an opposition.

1. Request for Judicial Notice

Defendant Bautista requests judicial notice of (1) print out of a California Department of Real Estate Public search for FML Management Corp.; (2) print out of California Department of Real Estate Public Search for Lisa S. Ehrlich; (3) copy of the Articles of Incorporation for FML Management Corp. on file with the California Secretary of State; (4) copy of the Statement of Information for FML Management Corp. on file with the California Secretary of State filed on January 5, 2015; (5) copy of the Statement of Information for FML Management Corp. on file with the California Secretary of State filed on March 6, 2020; (6) Business and Professions Code section 10131; (7) Business and Professions Code section 10133; (8) copy of the FML Management Corp. Residential Property Management Agreement; (9) copy of Amendment Number One to the FML Management Corp. Residential Property Management Agreement.

However, the attached proof of service does not demonstrate that Defendant Bautista’s request for judicial notice was properly served on Plaintiff. Thus, his request for judicial notice is DENIED.

1. Legal Standard & Discussion

Defendant Bautista seeks to set aside the default and default judgment entered against him on the following grounds.

A. CCP § 473(b)

Code of Civil Procedure section 473, subdivision (b) provides that 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.” (Code Civ. Proc., § 473, subd. (b).) Applications for relief under this section must be made “within a reasonable time, in no case exceeding six months…” (Id.) (Italics added.)

Here, default against Defendant Bautista on June 5, 2019 and default judgment was entered on July 15, 2020. “The general rule is that the six-month period within which to bring a motion to vacate under section 473 runs from the date of the default, not from the judgment taken thereafter.” (Rutan v. Summit Sports, Inc. (1985) 173 Cal.App.3d 965, 970.) As this Motion was filed more than a year after default was entered, it is untimely under section 473, subdivision (b).

B. CCP § 473.5

Code of Civil Procedure section 473.5 provides that, “when service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action. The notice of motion shall be served within a reasonable time but in no event exceeding the earlier of: (i) two years after entry of default judgment against him or her; or (ii) 180 days after service on him or her of a written notice that the default or default judgment has been entered.” (Code Civ. Proc., § 473.5, subd. (a).) (Italics added.)

Here, Defendant Bautista’s reliance on Section 473.5 is unavailing. Defendant Bautista does not argue he lacked actual notice of the action. Indeed, the Court’s record demonstrates he did have actual notice, as he filed a demurrer to the complaint on May 2, 2019. Defendant Bautista argues that he was not properly served with requests for entry of default of with notices of related cases. (Mot., p. 12:4-5.) However, as Defendant had actual notice of the action, relief from default is unavailable under Section 473.5.

C. CCP § 473(d)

Code of Civil Procedure section 473, subsection (d) provides “[t]he court may…on motion of either party after notice to the other party, set aside any void judgment or order.” Generally, a motion to set aside a void default judgment can be filed at any time. (OC Interior Services, LLC. v. Nationstar Mtg. (2017) 7 Cal.App.5th 1318, 1327.)

Defendant argues that the default and resulting default judgment are void because the Court sustained Defendant Bautista’s demurrer on June 4, 2019. (Mot., p. 10:10-11.) As noted above, Defendant Bautista filed a demurrer to Plaintiff’s complaint on May 2, 2019, which was set for hearing for June 4, 2019. Prior to the June 4, 2019 hearing, the Court issued a tentative ruling granting Defendant Bautista’s demurrer. (Mot., Exh. D.) However, the Court did not adopt its tentative ruling. (6/4/19 Minute Order.) Instead, the Court, after noting there was no appearance or submission by Defendant Bautista, placed the demurrer off calendar. (Id.) There being no responsive pleading from Defendant Bautista, the Court properly entered default against him the following day pursuant to Plaintiff’s request. Thus, the Court finds the default judgment entered against Defendant Bautista is not void.

D. Equitable Relief

Lastly, Defendant Bautista cites Civil Code section 1710 to argue Plaintiff was deceitful and argues that this warrants equitable relief. (Mot., p. 12:7-24.)

“[A] trial court may ... vacate a default on equitable grounds even if statutory relief is unavailable. [Citation.]” (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981.) “ ‘To set aside a judgment based upon extrinsic mistake one must satisfy three elements. First, the defaulted party must demonstrate that it has a meritorious case. Second[ ], the party seeking to set aside the default must articulate a satisfactory excuse for not presenting a defense to the original action. Last[ ], the moving party must demonstrate diligence in seeking to set aside the default once ... discovered.’ [Citation.]” (Id. at 982.)

First, Defendant Bautista does not clearly identify what actions he contends were deceitful. In addition, and as already noted above, Defendant did present a defense to the original action by filing a demurrer, but seemingly abandoned that defense when he failed to appear at the hearing on the demurrer. As Defendant cannot meet the second element of the three-part test articulated in Rappleyea, relief from default on equitable grounds is likewise unavailable.

1. Conclusion & Order

For the foregoing reasons, Defendant Genaro Bautista’s Motion for Order Vacating and Setting Aside Default Judgment is DENIED.

Moving party is ordered to give notice.