Superior Court of California, Appellate Division, Los Angeles
APPEAL from a judgment of the Superior Court of Los Angeles County, Central Trial Court No. 13U03636. Robert Harrison, Commissioner.
Eviction Defense Network, Elena I. Popp, Magda Madrigal, Jennifer Ganata, Carol Kim, Sonya Servin, and Mathew J. Sollett, for Defendant and Appellant.
Jack L. Schwartz, for Plaintiff and Respondent.
Defendant James Dyce appeals the trial court’s denial of his motion made pursuant to Code of Civil Procedure section 1179,  contending that the trial court erred in refusing to consider the merits of his motion due to the existence of a default judgment entered against him. We find defendant’s contention to be meritorious and therefore reverse.
On March 26, 2013, plaintiff SRO Housing filed an unlawful detainer complaint against defendant alleging that defendant failed to pay the rent from November 2012 through March 2013 for the rental of the premises located at 42 East 5th Street, #204, in Los Angeles, California. The complaint further alleged that there existed a one-year lease, and the action was brought solely for the non-payment of rent. Defendant was served with a three-day notice to pay rent or quit demanding $788 in past-due rent. The register of actions indicates that default and default judgment were entered against defendant and in favor of plaintiff on April 8, and April 10, 2013, respectively.
On April 26, 2013, defendant filed a motion to set aside default and vacate judgment, asserting that he was not personally served with the summons and complaint on March 30, 2013, as stated in the proof of service, and that he only found the summons and complaint posted on his door on April 18, 2013. Defendant sought relief under section 473, subdivision (d) on the basis that judgment was void for lack of proper service; section 473.5 on the basis that service did not result in actual notice of the action in time to defend; and 473, subdivision (b) based on his mistake, inadvertence, surprise, or excusable neglect.
Alternatively, defendant sought relief from forfeiture of his lease pursuant to section 1179. Defendant stated that he was elderly, disabled, and had a myriad of medical ailments which limited his mobility and required him to walk on crutches. He was under the care of mental health professionals and taking medication. He stated that if his motion were denied he would be rendered homeless due to his age, disabled status, and “reliance on a Section 8 voucher.”
On May 6, 2013, the court denied the motion, finding that defendant was served with summons and complaint on March 30, 2013, and there was “no grounds for relief.” The court refused to entertain a hearing on a motion for relief from forfeiture under section 1179 on the basis that “such relief is only available from a judgment upon trial under [section] 1174, ” and that the statute did not apply to default judgments. (Italics added.)
This timely notice of appeal was filed.
The issue on appeal herein is whether the trial court erred in failing to exercise its discretion and consider the merits of defendant’s motion for relief from forfeiture made under section 1179 because plaintiff’s judgment had been obtained through a default. It is well established that “[a] trial court’s failure to exercise discretion is itself an abuse of discretion, and we review such action in ...