Ismael Beserra vs Daniel Stehno

Case Number

23CV02383

Case Type

Hearing Date / Time

Mon, 03/25/2024 - 10:00

Nature of Proceedings

Motion: Set Aside Default Judgment

Tentative Ruling

Ismael Beserra vs. Daniel Stehno

           

Hearing Date: March 25, 2024                                              

MATTERS:             Defendant’s Motion To Set Aside Default

ATTORNEYS:        For Plaintiff Ismael Beserra: Cristi Michelon Vasquez

For Defendant Daniel Stehno: Self Represented

TENTATIVE RULING:

The motion of defendant to set aside default is granted. The default of defendant entered on January 5, 2024, and the default judgment by court entered on January 26, 2024, are vacated and set aside.

Background:

Plaintiff Ismael Beserra filed his original complaint against defendant Daniel Stehno on June 5, 2023. On July 21, 2023, defendant filed a demurrer to the complaint filed by plaintiff, setting the hearing on the demurrer for August 28, 2023.

Plaintiff filed a first amended complaint (the FAC) on August 21, 2023. On August 28, 2023, the court issued its Minute Order sustaining defendant’s demurrer to the complaint, with leave to amend, and deeming the FAC to be the amended pleading.

On October 20, 2023, defendant filed a demurrer to the FAC (the demurrer). A hearing on the demurrer was held on December 18, 2024, after which the court issued its Minute Order also dated December 18, 2024 (the Minute Order). Pursuant to the Minute Order, the court struck the demurrer for defendant’s failure to comply with the mandatory pre-filing meet-and-confer requirement of Code of Civil Procedure section 430.41, subdivision (a), and failure to provide proof of service of the demurrer on counsel for plaintiff. (See Minute Order.) The court further ordered plaintiff to serve written notice of the court’s ruling and ordered defendant to file and serve his answer to the FAC on or before 15 days after service of notice of the ruling by plaintiff. (Ibid.)

Court records reflect that the default of defendant as requested by plaintiff was entered on January 5, 2024 (the default). On January 24, 2024, plaintiff filed a request for court judgment against defendant. A default judgment was entered by the court against defendant on January 26, 2024, in the amount of $16,779.00 (the default judgment).

On January 30, 2024, defendant filed a motion to set aside the default and the default judgment. In the declaration submitted in support of the motion, defendant declares that on January 5, 2024, he placed for filing in the clerk’s drop box a completed answer to the FAC. (Stehno Decl., ¶ 1 & Exh. A.) Defendant asserts that he did not realize that on the same day, plaintiff had filed a request to enter the default. (Id. at ¶ 2.) Defendant further asserts that his answer was rejected because defendant had mistakenly checked a box on the answer stating that defendant was responding to a cross-complaint. (Id. at ¶ 3.) Instead, it was defendant’s intent to file a cross-complaint in addition to an answer to the FAC. (Ibid.) Defendant submits a proposed corrected answer to the FAC. (Id., Exh. B.)

Plaintiff opposes the motion.

Analysis:

Code of Civil Procedure section 473, subdivision (b), permits the court to relieve a party from a judgment or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. (Code Civ. Proc., § 473, subd. (b).) In addition, “[t]he court may, … on motion of either party after notice to the other party, set aside any void judgment or order.” (Code Civ. Proc., § 473, subd. (d).) (Note: Undesignated statutory references shall be to the Code of Civil Procedure unless otherwise indicated.) An application for relief from a judgment or other proceeding under section 473, subdivision (b), “shall be made 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).)

Defendant filed the motion well within the statutory time period, approximately three weeks after plaintiff served by mail the request for entry of default on defendant and four days after the default judgment was entered. Therefore, the court finds that the motion is timely. In addition, the motion is accompanied by a copy of the answer that defendant proposes to file in compliance with section 473, subdivision (b).

In the notice of the motion, defendant expressly requests an order setting aside both the default and the default judgment. (See Notice at p. 1, ll. 20-24.) Defendant contends that the court should set aside the default and the default judgment for reasons offered in the motion and further discussed above. The notice and the memorandum sufficiently define the issues and state the grounds upon which the motion is made. For this reason, the court finds that the motion complies with Code of Civil Procedure section 1010 and California Rules of Court, rule 3.1110(a), and is procedurally appropriate. (Kinda v. Carpenter (2016) 247 Cal.App.4th 1268, 1277; Luri v. Greenwald (2003) 107 Cal.App.4th 1119, 1125.)

Under the statute, “surprise” sufficient to permit relief under section 473, subdivision (b), includes circumstances under which “ ‘some condition or situation in which a party to cause is unexpectedly placed to his injury, without any default or negligence of his own, which ordinary prudence could not have guarded against.’ [Citation.]” (Credit Managers Assn. v. National Independent Business Alliance (1984) 162 Cal.App.3d 1166, 1173.) Under the circumstances present here and as further discussed below, there exists conditions sufficient to constitute “surprise” by defendant.

As further discussed above, pursuant to the Minute Order, defendant was required to file and serve his answer to the FAC within 15 days following service of notice by plaintiff of the court’s ruling on the demurrer, subject to any appropriate extensions of time under sections 1010.6 or 1013. Plaintiff contends that he gave defendant notice of the court’s ruling on the demurrer. Plaintiff further contends that, pursuant to the court’s ruling on the demurrer, defendant was required to file and serve his answer to the FAC on or before December 30, 2023.

Court records reflect that on December 15, 2023, plaintiff filed in this matter a notice of ruling (the notice) in which plaintiff states that “prior to the hearing” on the demurrer, the court made the following ruling: “[t]he demurrer of defendant … is ordered off calendar. Plaintiff … shall serve notice of this ruling on defendant and file proof of service with the court. Defendant … shall file and serve his answer to plaintiff’s first amended complaint on or before 15 days after service of notice of this ruling.” (Notice at p. 1.) Attached to the notice is a proof of service declaring that plaintiff mailed the notice to defendant on December 15, 2023. (Ibid.)

Also attached to the notice is a copy of the court’s tentative ruling on the demurrer (the tentative ruling). Court records reflect that the tentative ruling was made available to the parties in this matter at 12:00 p.m. on December 15, 2023, by posting on the court’s web site pursuant to the court’s Local Rules, rule 1301. (See also Cal. Rules of Court, rule 3.1308.) The notice and the tentative ruling each demonstrate that the hearing date on the demurrer was scheduled for December 18, 2023. (Notice at p. 1; see also Tentative Ruling.)

“A tentative ruling is just that, tentative.” (Guzman v. Visalia Community Bank (1999) 71 Cal.App.4th 1370, 1378.) A tentative ruling “ ‘indicate[s] the way the judge is prepared to decide the matter based on the information before him or her when the ruling was prepared’ [citation]” and “allows both sides the opportunity to reevaluate their respective positions in light of the preliminary views expressed by the issuing court on the matter, and to either submit to the tentative ruling, thereby negating the need for oral argument, or to focus their arguments at the subsequent hearing.” (Brown, Winfield & Canzoneri, Inc. v. Superior Court (2010) 47 Cal.4th 1233, 1245, 1246 (Brown).) “ ‘A court may change its [tentative] ruling until such time as the ruling is reduced to writing and becomes the [final] order of the court.’ [Citation.]” (Silverado Modjeska Recreation & Park Dist. v. County of Orange (2011) 197 Cal.App.4th 282, 300.)

Because a tentative ruling effectively sets forth the court’s initial impressions of the matter before the hearing and oral argument by the parties, if any, “[c]ourts are not bound by their tentative rulings.” (Jespersen v. Zubiate-Beauchamp (2003) 114 Cal.App.4th 624, 633.) A tentative ruling becomes the final ruling only “if the court does not order oral argument in its tentative ruling, and notice of intent to appear is not given by one of the parties” or “after the hearing on the motion is conducted, assuming the court does not then render a different ruling.” (Brown, supra, 47 Cal.4th at p. 1245; see also Cal. Rules of Court, rule 3.1308(a)(1) & (2) [describing circumstances under which a tentative ruling becomes the final ruling of the court].)

For all reasons discussed above, the tentative ruling attached to the notice indicated only the manner in which the court was prepared to decide the demurrer and did not become a binding final ruling until December 18, 2023. (See, e.g., Super Ct. Santa Barbara County, Local Rules, rule 1301; Cal. Rules of Court, rule 3.1308(a)(1).) The court’s final ruling on the demurrer is set forth in the Minute Order adopting the tentative ruling. (In re Marcus (2006) 138 Cal.App.4th 1009, 1015-1016, original italics [defining an “order” of the court].) For these reasons, the notice served by plaintiff three days prior to the hearing on the demurrer and attaching only the court’s tentative ruling was ineffective to provide defendant with notice of the court’s final ruling on the demurrer.

In addition, court records reflect that defendant appeared at the hearing on the demurrer on December 18, 2023. (See Minute Order [identifying defendant as the only party present at the hearing on the demurrer to the FAC].) It was reasonable for defendant to believe that he would not be required to file and serve an answer to the FAC until after plaintiff served written notice of the court’s final ruling on the demurrer, subject to the time frames set forth in the Minute Order.

The court has no record or other information showing that plaintiff served written notice of the court’s final ruling or the Minute Order on defendant. Therefore, to the extent plaintiff did not serve written notice of the court’s ruling pursuant to the Minute Order, defendant’s time to answer the FAC did not begin to run. For this same reason, defendant was not in default on January 5, 2024.

Furthermore, based on the manner in which the notice itself effectively and incorrectly characterizes the tentative ruling as the court’s “ruling”, it can be inferred that the clerk reasonably believed that the court had entered a final ruling on the demurrer on December 15, 2023. As a result, the default of defendant was erroneously entered by the clerk on January 5, 2024, as requested by plaintiff. These circumstances were not brought about due to any default or negligence by defendant.

Court records also reflect that, notwithstanding any other deficiencies that may have caused the clerk to reject the answer defendant attempted to file, the clerk also rejected defendant’s answer because of the default requested by plaintiff. Therefore, and notwithstanding whether the answer included other deficiencies which prevented its filing, defendant would have been unable to file an answer to the FAC on or after January 5, 2024. Ordinary prudence by defendant could not have guarded against the clerk’s rejection of defendant’s answer on January 5, 2024, or any subsequent date.

In addition, if plaintiff complied with the Minute Order by serving notice of the court’s ruling on December 18, 2023, in the same manner that plaintiff served the notice (i.e., by regular mail), defendant would have been required to file his answer to the FAC on or before January 8, 2024. (See Code Civ. Proc., § 1013, subd. (a) [extending the period by five calendar days in the case of service by mail].) For this additional reason, had plaintiff complied with the Minute Order, defendant’s answer would have been timely on January 5, 2024, to the extent plaintiff served written notice of the court’s ruling by mail as ordered by the court. For these additional reasons, defendant could not reasonably have expected that he would not be able to file his answer on January 5, 2024, based on the default.

In addition, to the extent that defendant’s answer was rejected on January 5, 2024, also due to defendant inadvertently identifying a cross-complaint by plaintiff, under the circumstances present here defendant has offered facts which the court finds sufficient to demonstrate excusable neglect. (See Shapiro v. Clark (2008) 164 Cal.App.4th 1128, 1142, 1143 [rejecting “categorical statements about what can be found to constitute excusable neglect” and finding that intervening factors impeding response to complaint upon entry of default sufficient to constitute excusable neglect].)

Because the default of defendant was erroneously entered due to conditions not caused by any default or negligence by defendant, the default judgment is also void to the extent it was occasioned by the filing of the notice as further discussed above and the subsequent erroneous entry of the default. (Plaza Hollister Ltd. Partnership v. County of San Benito (1999) 72 Cal.App.4th 1, 20 [a judgment is void to the extent it provides relief “which a court under no circumstances has any authority to grant”]; accord, Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 1004, 1009.)

“The policy of the law is to have every litigated cause tried on its merits; and it looks with disfavor on a party who, regardless of the merits of his cause, attempts to take advantage of the mistake, surprise, inadvertence, or neglect of his adversary.” (Reed v. Williamson (1960) 185 Cal.App.2d 244, 248; see also Andres v. Armstrong (1959) 168 Cal.App.2d 344, 347-348 [any doubts should be resolved in favor of setting aside a default and disposing of the case on its merits].) Plaintiff’s filing of the notice before the court issued its final ruling on the demurrer created circumstances under which the clerk mistakenly entered the default of defendant on January 5, 2024. These conditions were not created by any default or negligence by defendant.

In addition, because plaintiff failed to serve written notice of the court’s final ruling on the demurrer as ordered by the court, defendant was not in default on January 5, 2024. Therefore, defendant could not reasonably have expected his default would be entered as of the date defendant attempted to file his answer to the FAC nor could ordinary prudence by defendant have guarded against these events. In addition, defendant has demonstrated the existence of an inadvertent error on the face of the answer. For these and all reasons discussed above and under the circumstances present here, there exists evidence of surprise and excusable neglect on the part of defendant sufficient to justify relief from the default and default judgment. Therefore, the court will grant the motion of defendant and will order the default and default judgment vacated and set aside.