JOSEPH SCLAFANI VS CROSS ROADS PROPERTIES I LLC

Tentative Rulings

Case Number: BC640081    Hearing Date: February 03, 2020    Dept: 27

[TENTATIVE] ORDER RE: MOTION TO VACATE ENTRY OF DEFAULT

On November 8, 2016, plaintiff Joseph Sclafani filed this action against defendant Cross Roads Properties I, LLC (“Defendant”) for negligence and premises liability arising from a November 9, 2014 slip and fall. On July 24, 2018, Plaintiff filed a proof of service of summons stating Defendant had been served with the complaint on July 10, 2018. Defense counsel states Defendant was not served with the Complaint until March 11, 2019. On April 18, 2019, Plaintiff obtained entry of default against Defendant. On May 31, 2019, Plaintiff amended the complaint to name Morton La Kretz as a Doe defendant. Plaintiff served both La Kretz and Defendant with the amendment and complaint on June 20, 2019.

From June 21, 2019 to August 8, 2019, defense counsel attempted to contact Plaintiff’s counsel regarding a stipulation to vacate the April 18, 2019 default. On August 8, 2019, Defendant filed an answer. On August 21, 2019, the Court held an OSC hearing for failure to file a default judgment. The Court’s minute order reflects that Plaintiff’s counsel stated Defendant had filed an answer and counsel would be submitting a stipulation to set aside the default and proceed with the case. The Court therefore continued the OSC to October 24, 2019, and stated that if the stipulation was filed before that date, the matter would be heard as a trial setting conference. On October 24, 2019, Plaintiff’s counsel stated he needed more time to complete the service of La Kretz. The Court ordered the parties to meet and confer regarding the possibility of setting aside the default by the next hearing date. The Court continued the OSC to January 15, 2020. On December 3, 2019, defense counsel spoke on the phone with Plaintiff’s counsel, who said that Plaintiff would not stipulate to vacate the default. On December 24, 2019, Defendant filed this motion to vacate the entry of default.

Defendant seeks to vacate the default under Code of Civil Procedure section 473.5, subdivision (a), which allows a party to move to set aside a default where service of the summons has not resulted in actual notice to a party in time to defend. Defense counsel’s declaration states Defendant did not have notice of the complaint until March 11, 2019, but does not address the proof of service of summons showing service on July 10, 2018 and what occurred between July 10, 2018 and entry of default the next year.

Pursuant to Code of Civil Procedure section 473, subdivision (b), a motion for relief from default must be made no than six months after entry of default. “[A] court has no authority under section 473, subdivision (b), to excuse a party's noncompliance with the six-month time limit.” (Arambula v. Union Carbide Corp. (2005) 128 Cal. App. 4th 333, 345.) However, a default can be set aside due to extrinsic fraud even after the six month deadline. (Aheroni v. Maxwell (1988) 205 Cal.App.3d 284, 290-291.) Examples of extrinsic fraud are where a party has “lulled the other party into a state of false security, thus causing the latter to refrain from appearing in court or asserting legal rights” (id. at p. 291) or where the aggrieved party is in some way “induced not to appear” by “a false promise of a compromise.” (Estate of Sanders (1985) 40 Cal.3d 607, 614.)

Here, Defendant argues its counsel relied on Plaintiff’s counsel’s representations that Plaintiff would stipulation to set aside the default. Defense counsels states in his declaration that on June 21 and July 1, 2019, he called Plaintiff’s counsel’s office. On July 9, 2019, he sent a letter to Plaintiff’s counsel asking Plaintiff to stipulate to an order vacating the default, and on August 8, 2019, he filed an answer because he assumed Plaintiff would sign such a stipulation. Then at the August 21, 2019 OSC hearing, Plaintiff’s counsel stated that Plaintiff would be submitting a stipulation to set aside the default and proceed with the case. On October 29, 2019, defense counsel sent Plaintiff’s counsel a letter enclosing a proposed stipulation. On December 3, 2019, after Plaintiff’s counsel told defense counsel that Plaintiff would not sign the stipulation, defense counsel sent a letter to Plaintiff's counsel stating that after the two attorneys had attended the August 21, 2019 OSC, defense counsel relied on Plaintiff’s counsel’s statement that he would be submitting a stipulation to set aside the default. Defendant argues it has a meritorious defense based on the statute of limitations because there is evidence that the incident occurred on November 7, 2014, not November 9, 2014, and therefore the action is barred by the statute of limitations.

Plaintiff argues Defendant waited too long to answer and that Plaintiff’s counsel never agreed to set aside the default. But Plaintiff submits no evidence of the assertion that his counsel never stated Plaintiff would set aside the default, and Plaintiff does not address the August 21, 2019 minute order.

Based on the evidence presented, the Court finds sufficient evidence that defense counsel relied on Plaintiff’s counsel representation that Plaintiff would sign a stipulation to set aside the default and proceed with the case, and for that reason did not file a motion to set aside the default earlier, within the six month time period under section 473, subdivision (b). Once defense counsel was retained, he immediately attempted to remedy the situation of the default, and he acted diligently in filing this motion.

However, Defendant has not explained why it contends it was not served until March 11, 2019 when the proof of service of summons shows service on July 10, 2018; if the complaint was served on July 10, 2018, why Defendant waited a year to hire an attorney and start making efforts to respond; and what mistake, inadvertence, surprise or excusable neglect resulted in a failure to respond to the complaint during that time period. At the hearing, Defendant should be prepared to address these points, with admissible evidence.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative.