Court Did Not Exercise Its Discretion To Relieve A Tenant From Default In Unlawful Detainer Action.

A landlord filed an unlawful detainer complaint against a tenant who didn’t pay the rent. A default and default judgment were entered against the defendant tenant. The defendant/tenant brought a motion to set aside the default pursuant to Code of Civil Procedure sections 473 and 473.5, claiming he was not personally served with the complaint as stated on the proof of service, and that he only found the summons and complaint posted on his door three weeks later. Alternatively he based his motion on Code of Civil Procedure section 1179, stating he is elderly and disabled. The trial court denied the 473/473.5 motion, finding defendant was served, and refused to even conduct a hearing for relief from forfeiture under Code of Civil Procedure section 1179, which states: “The court may relieve a tenant against a forfeiture of a lease, or rental agreement, . . . whether or not the tenancy has terminated, and restore him or her to his or her former estate or tenancy, in case of hardship, as provided in Section 1174. The court has the discretion to relieve any person against forfeiture on its own motion.” The appellate court reversed, stating:  “Nothing in [Code of Civil Procedure section] 1179 precludes the trial court from exercising discretion to relieve a party against forfeiture due to the existence of a default judgment.” (SRO Housing v. Dyce (Cal. App. Sup. L.A.; January 22, 2014) 223 Cal. App. 4th Supp. 1, [167 Cal. Rptr. 3d 394].)