WELL FORTUNE INTERNATIONAL INC VS BLAINE GRAY ET AL

Tentative Rulings

Case Number: BC668378    Hearing Date: January 28, 2021    Dept: 36

Superior Court of California

County of Los Angeles

Department 36

The motion to set aside dismissal is granted.

The court sets an Order to Show Cause Re: Default Judgment for 04/16/21.

Legal Standard

A trial court has broad discretion to vacate the judgment and/or the clerk’s entry of default that preceded it. (CCP § 473.) However, that discretion can be exercised only if the moving party establishes a proper ground for relief, by the proper procedure, and within the time limits. (Cruz v. Fagor America, Inc. (2007) 146 Cal.App.4th 488, 495.) A party may seek discretionary or mandatory relief from default under CCP § 473(b) on grounds of “mistake, inadvertence, surprise or excusable neglect.”

“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.” (Elston v. City of Turlock (1985) 38 Cal.3d 227, 233.) Where the party in default moves promptly to seek relief, and no prejudice to the opposing party will result from setting aside the default and letting the case go to trial on the merits, “very slight evidence will be required to justify a court in setting aside the default.” (Id.)

Discussion

Timely Filing

A motion to set aside must be brought within 6 months; the requirement is jurisdictional. (CCP § 473(b); Austin v. Los Angeles Unified School Dist. (2016) 244 Cal.App.4th 918, 928; Davis v. Thayer (1980) 113 Cal.App.3d 892, 901 [as used in § 473(b), “six months” means 182 days].) Plaintiff’s motion was filed on August 28, 2020, 182 days after dismissal entered on February 28, 2020. The motion is thus timely.

Notice

This court previously continued the motion for Plaintiff to provide sufficient notice of the hearing date and location of the motion. Plaintiff on November 3, 2020 then filed a notice of continuance of the hearing date displaying the correct continued hearing date; and when the motion was continued then filed a subsequent notice of the continued hearing date.

Motion to Set Aside Dismissal

Plaintiff Well Fortune International, Inc. moves to set aside dismissal of this action pursuant to Code of Civil Procedure, Section 473(b). Plaintiff asserts entitlement to mandatory relief under Section 473 on grounds of Plaintiff’s Counsel’s declaration attesting to mistake.

The motion is unopposed.

“[W]henever 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,” relief from dismissal for the attorney’s client is mandatory. (CCP § 473(b).)

The court ordered this case dismissed on February 28, 2020, on the court’s own motion pursuant to California Rules of Court, Rule 3.110(h) for failure to obtain default judgment within 45 days of the entry of default.

Plaintiff’s Counsel attests that Counsel failed to obtain default judgment within 45 days was a result of Counsel’s mistaken understanding that the most recent entry of default, having been entered on February 6, 2020, allowed Counsel more time to file the default judgment package. (Liu Decl. ¶ 11.)

Plaintiff has now filed default prove-up papers.

Based on the foregoing, Plaintiff’s motion to set aside dismissal is granted.

Dated: ____________________________

Hon. Gregory Alarcon

Superior Court Judge

Case Number: BC668378    Hearing Date: November 03, 2020    Dept: 36

Superior Court of California

County of Los Angeles

Department 36

The hearing on Plaintiff’s Motion to Set Aside Dismissal is continued to 12/13/20.

Plaintiff to file proper notice of this motion and proposed documents in support of default within 10 days.

Timely Filing

A motion to set aside must be brought within 6 months; the requirement is jurisdictional. (CCP § 473(b); Austin v. Los Angeles Unified School Dist. (2016) 244 Cal.App.4th 918, 928; Davis v. Thayer (1980) 113 Cal.App.3d 892, 901 [as used in § 473(b), “six months” means 182 days].) Plaintiff’s motion was filed on August 28, 2020, 182 days after dismissal entered on February 28, 2020. The motion is thus timely.

Notice

A Notice of Motion must state the “date, time, and location, if ascertainable, of any scheduled hearing and the name of the hearing judge, if ascertainable.” (Cal. Rules of Court, Rule 3.1110(b)(1).) Plaintiff’s Notice of Motion erroneously states the instant motion to set aside dismissal is to be heard in Department 32 at the Spring Street Courthouse located at 312 Spring Street, Los Angeles, California. As such, Plaintiff’s Notice of Motion does not provide sufficient notice of the hearing date and location of this motion.

In addition, Plaintiff’s Counsel filed a Notice of Lodging on October 29, 2020 stating that the proposed papers have been lodged in support of Plaintiff’s default judgment; these papers have not been filed, as required by Code of Civil Procedure, section 473(b), nor received by lodging. The court notes that the Notice of Lodging likewise indicates the incorrect address and Department for the motion.

The hearing on this motion is continued for Plaintiff to provide proper notice of this motion, and to file the proposed papers in support of default judgment with proper notice thereof.

Dated: ____________________________

Hon. Gregory Alarcon

Superior Court Judge