Judge: Andrew E. Cooper, Case: 23CHCV03680, Date: 2024-08-01 Tentative Ruling

Case Number: 23CHCV03680    Hearing Date: August 1, 2024    Dept: F51

MOTION TO VACATE/SET ASIDE DEFAULT JUDGMENT

Motion Filed: 3/1/24

MOVING PARTIES: Defendant Michael Casamento (“Defendant”)

RESPONDING PARTY: Plaintiffs Brian Biedebach; and Anita Biedebach (collectively, “Plaintiffs”)

NOTICE: OK 

RELIEF REQUESTED: An order vacating the default entered against Defendant on 2/16/24.

TENTATIVE RULING: The motion is granted. Defendant’s counsel is ordered to pay compensatory attorney fees and costs to Plaintiff’s counsel in the amount of $550.00. Defendant to separately file his proposed answer and cross-complaint within 10 days of this order.

BACKGROUND

On 12/4/23, Plaintiffs filed the instant real property action against Defendant, alleging the following causes of action: (1) Declaratory Relief; and (2) Nuisance. On 12/28/23, Defendant’s notice and acknowledgment of receipt of the complaint and summons was filed.

On 2/16/24, the Court entered default against Defendant. On 3/1/24, Defendant filed the instant motion. On 4/24/24, Plaintiffs filed their opposition. On 7/16/24, Defendant filed his reply.

ANALYSIS

“The court shall, whenever 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, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.” (Code Civ. Proc. § 473, subd. (b).)

A.    Attorney Mistake

“When evaluating a motion to set aside a default judgment on equitable grounds, the court must weigh the reasonableness of the conduct of the moving party in light of the extent of the prejudice to the responding party.” (Lasalle v. Vogel (2019) 36 Cal.App.5th 127, 139 [internal quotations omitted].)

Here, Defendant’s attorney declares under penalty of perjury that he failed to timely respond to Plaintiff’s complaint because “when I calendared the deadline, inadvertently set a due date on my calendar for this date, except for 2025 instead of 2024.” (Decl. of Ryan Jackman ¶ 2.) Defendant’s attorney was notified of his calendaring mistake on 2/15/24, when Plaintiff’s counsel sent him an email informing him that the deadline to respond had passed. (Id. at ¶ 3.) “Plaintiff’s counsel indicated that he would be filing a default by noon the following day if an answer was not filed.” (Ibid.)

On 2/16/24, the next day, Defendant’s counsel electronically served Plaintiff’s counsel with Defendant’s answer at 12:05 PM. (Id. at ¶ 4.) Plaintiff’s counsel’s office filed the request for entry of default the same day at 12:09 PM, when Defendant’s answer had not yet been filed with the Court. (Ibid.) Counsel for the parties discussed stipulating to set aside the default against Defendant, but ultimately could not agree as to whether Defendant would be permitted to file a cross-complaint. (Id. at ¶ 5.)

Plaintiff argues in opposition that the instant motion should be denied because “Counsel advances a calendaring error as the explanation for his failure to file a response by the due date agreed upon but does not explain why he did not do so within the further extension afforded by Plaintiffs’ counsel.” (Opp. 2:3–5.) Specifically, Plaintiff argues that “Mr. Jackman knew and accepted the noon deadline and was fully aware that Plaintiffs would be seeking entry of default if an answer was not filed by noon. He did not request additional time or indicate any concern with meeting that deadline.” (Id. at 4:22–24 [emphasis in original].)

Based on the foregoing, the Court finds that Defendant has sufficiently shown that 2/16/24 default was entered against him based on attorney mistake. “An attorney has an ethical obligation to warn opposing counsel that the attorney is about to take an adversary’s default,” and to provide a reasonable time within which the adversary may file his responsive pleading. (Lasalle, 36 Cal.App.5th at 135.) In Lasalle, the Court of Appeal found that a demand for a responsive pleading to be filed in one day was unreasonably short, as “just being out of the office for one day – for example, on another case – would have prevented her from meeting it.” (Id. at 138, 140.) Here, the Court similarly finds that Defendant’s counsel missed the deadline to file Defendant’s responsive pleading due to mistake, and that Plaintiff’s counsel’s demand for the responsive pleading to be filed by noon the next day was unreasonable.

The Court further notes the parties’ representations that discussions about a stipulation to set aside the default took place, further demonstrating Plaintiff’s willingness to excuse Defendant’s default and lack of prejudice to Plaintiff should the instant motion be granted. Accordingly, the Court grants Defendant’s motion to set aside the default entered against him on 2/16/24.

B.     Fees and Costs

“The court shall, whenever relief is granted based on an attorney’s affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties.” (Code Civ. Proc. § 473, subd. (b).)

Here, Plaintiff requests attorney fees and costs in the amount of $2,915.00, which accounts for 5.3 hours of Plaintiff’s attorney’s time spent reviewing the motion, drafting and filing the opposition, and appearing at the hearing, at his hourly billing rate of $550.00 per hour. (Decl. of Robert A. Bailey, ¶ 5.) Defendant argues in opposition that this amount is unreasonably high. (Reply 4:18–21.) The Court also notes that Defendant’s counsel has already paid $400.00 to Plaintiff’s counsel. (Jackman Decl. ¶ 5.)

In granting the instant motion, the Court finds it reasonable to award Plaintiff compensatory legal fees and costs in the amount of $550.00.

CONCLUSION

The motion is granted. Defendant’s counsel is ordered to pay compensatory attorney fees and costs to Plaintiff’s counsel in the amount of $550.00. Defendant to separately file his proposed answer and cross-complaint within 10 days of this order.