LETICIA MARTINEZ VS J. GUADALUPE GONZALEZ, ET AL.

Tentative Rulings

Case Number: 20STLC07503    Hearing Date: April 15, 2021    Dept: 25

HEARING DATE: Thu., April 15, 2021 JUDGE /DEPT: Blancarte/25

CASE NAME: Martinez v. Gonzalez COMPL. FILED: 09-03-20

CASE NUMBER: 20STLC07503 DEFAULT: 10-09-20

PROCEEDINGS: MOTION TO SET ASIDE DEFAULT AND DEFAULT JUDGMENT

MOVING PARTY: Defendants J. Guadalupe Gonzalez Efren Gonzalez, and Epazote #1, LLC

RESP. PARTY: None

MOTION TO SET ASIDE DEFAULT AND DEFAULT JUDGMENT

(CCP § 473(b))

TENTATIVE RULING:

Defendants J. Guadalupe Gonzalez, Efren Gonzalez, and Epazote #1, LLC’s Motion to Set Aside Default and Default Judgment is GRANTED. The default entered on October 9, 2020 and default judgment entered on November 3, 2020 against Defendants are HEREBY VACATED. Defendants are ordered to file their proposed answer within ten (10) days of notice of this order.

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 April 13, 2021 [ ] Late [X] None

REPLY: None filed as of April 13, 2021 [ ] Late [X] None

ANALYSIS:

1. Background

On September 3, 2020, Plaintiff Leticia Martinez (“Plaintiff”) filed an action for violation of the Unruh Civil Rights Act against Defendants J. Guadalupe Gonzalez (“J. Guadalupe”), Efren Gonzalez (“Efren”), and Epazote #1, LLC (“Epazote”) (collectively, “Defendants”).

Default was entered against Defendants on October 19, 2020. Later that evening, Defendants Efren and J. Guadalupe attempted to file an Answer, which was not accepted as filed by the Court.

On October 29, 2020, Defendants filed the instant Motion to Set Aside Default and Default Judgment (the “Motion”). No opposition was filed. On November 3, 2020, a default judgment of $5,225.00 was entered against Defendants. (11/3/20 Default Judgment.)

The Court continued the initial February 10, 2021 hearing because Defendants failed to include a proof of service demonstrating Plaintiff was given adequate notice of the Motion. (2/10/21 Minute Order.)

Defendants refiled their Motion on February 16, 2021 with a proof of service demonstrating it was served on Plaintiff on February 11, 2021 via regular mail. (2/16/21 Mot., Proof of Service.) No opposition was filed.

1. Legal Standard & Discussion

Defendants seek relief pursuant to Code of Civil Procedure section 473, subdivision (b). (2/16/21 Mot., p. 1:22-27.) Under this statute, an application for relief must be made no more than six months after entry of the judgment, dismissal, order, or other proceeding from which relief is sought and must be accompanied by an affidavit of fault attesting to the mistake, inadvertence, surprise or neglect of the moving party or its attorney. (Code Civ. Proc., § 473, subd. (b); English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 143.)

Defendants’ Motion is timely. Defendants seek relief from the default and the resulting default judgment entered against them due to Defendants’ counsel’s mistake, inadvertence, surprise, or excusable neglect. (2/16/21 Am. Mot., p. 1:22-27; p. 2:8-9; p: 7-9.) Specifically, Defendant’s counsel explains that his paralegal failed to enter on the office calendar the correct date on which the answer was due. (Id., Fernandez Isla Decl., ¶ 1; Garcia Decl., p. 6:11-27.) As a result, the answer was not timely filed. (Id.)

Based on the timely request to vacate the default and resulting default judgment supported by an attorney affidavit of fault, the unopposed Motion is GRANTED.

1. Conclusion & Order

For the foregoing reasons, Defendants J. Guadalupe Gonzalez, Efren Gonzalez, and Epazote #1, LLC’s Motion to Set Aside Default and Default Judgment is GRANTED. The default entered on October 9, 2020 and default judgment entered on November 3, 2020 against Defendants are HEREBY VACATED. Defendants are ordered to file their proposed answer within ten (10) days of notice of this order.

Moving party is ordered to give notice.

Case Number: 20STLC07503    Hearing Date: February 10, 2021    Dept: 25

Case Number: 21STLC00586    Hearing Date: February 10, 2021    Dept: 25

HEARING DATE: Wed., February 10, 2021 JUDGE /DEPT: Blancarte/25

CASE NAME: Brophy v. Bixby Hill Gardens HOA et al. COMPL. FILED: 01-21-21

CASE NUMBER: 21STLC00586 DISC. C/O: 06-21-22

NOTICE: OK MOTION C/O: 07-06-22

PROCEEDINGS: MOTION FOR PRELIMINARY INJUNCTION

MOVING PARTY: Plaintiff James Brophy

RESP. PARTY: Defendant Bixby Gardens Homeowners Association

MOTION FOR PRELIMINARY INJUNCTION

(CCP § 526)

TENTATIVE RULING:

Plaintiff James Brophy’s Motion for Preliminary Injunction is PLACED OFF CALENDAR. Because this Court does not have jurisdiction to issue permanent injunctive relief as prayed for in the Complaint, the action is RECLASSIFIED as an unlimited jurisdiction case and is transferred to the transfer/reclassification desk for collection of fees and reassignment. Plaintiff is ordered to pay the reclassification fee within ten (10) days of this order.

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: Filed on February 5, 2021 [X] Late [ ] None

REPLY: Filed on February 8, 2021 [X] Late [   ] None

ANALYSIS:

1. Background & Discussion

Plaintiff James Brophy (“Plaintiff”) filed this action for a permanent injunction and monetary damages against Defendant Bixby Hill Gardens Homeowners Association (the “Bixby HOA”) and Bixby Hill Gardens Board of Directors (“Bixby BOD”) (collectively, “Defendants”) on January 21, 2021.

On January 22, 2021, Plaintiff filed an ex parte application for a temporary restraining order. The Court granted the ex parte application on January 26 and enjoined Defendants, their employees, agents, and/or any other persons acting with them or on their behalf from removing or causing to be removed any plants, flowers, trees, or other planted material from the common area located in front of 932 Palo Verde Ave., Long Beach, Ca 90815. (1/26/21 Minute Order.) The parties were also ordered to meet and confer in good faith on a possible resolution of this matter no later than five (5) days before the next hearing. (Id.)

Also on January 26, Plaintiff filed the instant Motion for Preliminary Injunction (the “Motion”). Defendant Bixby HOA filed an opposition on February 5, and Plaintiff filed a Reply on February 8.

As an initial matter, the Court notes that limited jurisdiction courts, such as this one, do not possess the authority to issue permanent injunctive relief. (Code Civ. Proc., § 86, subd. (a)(8) [“An action to issue a temporary restraining order or preliminary injunction” is a limited civil case].) (Emphasis added.) Because this action seeks permanent injunctive relief, the Court does not have jurisdiction over the case. Accordingly, the Court reclassifies this action to unlimited jurisdiction court on its own motion under Code of Civil Procedure section 403.040, subdivision (a). Plaintiff is ordered to pay the reclassification fee within ten (10) days of this order.

1. Conclusion & Order

For the foregoing reasons, Plaintiff James Brophy’s Motion for Preliminary Injunction is PLACED OFF CALENDAR. Because this Court does not have jurisdiction to issue permanent injunctive relief as prayed for in the Complaint, the action is RECLASSIFIED as an unlimited jurisdiction case and is transferred to the transfer/reclassification desk for collection of fees and reassignment. Plaintiff is ordered to pay the reclassification fee within ten (10) days of this order.

Moving party is ordered to give notice.