Judge: Armen Tamzarian, Case: 22STCV29187, Date: 2023-03-21 Tentative Ruling

Case Number: 22STCV29187    Hearing Date: March 21, 2023    Dept: 52

Defendants Alen Marsign Stepanian’s and Grandview Financial Services, Inc.’s Motions to Set Aside Default

Defendants Alen Marsign Stepanian and Grandview Financial Services, Inc. each move to set aside their defaults.  “The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.”  (CCP § 473(b).)  “Because the law favors disposing of cases on their merits, ‘any doubts in applying section 473 must be resolved in favor of the party seeking relief from default.’ ”  (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980.)

Defendants meet their burden of showing the default against them resulted from mistake, inadvertence, surprise, or excusable neglect.  After service of summons, defendants’ counsel unsuccessfully tried to reach plaintiff’s counsel by phone.  (Keshishian Decl., ¶ 5.)  On October 12, 2022, defendants’ counsel emailed plaintiff’s counsel to discuss the case.  (Id., ¶ 5, Ex. 1.)  Attorney David Cooper replied that he passed his message “to Robert [Mobasseri], who handles settlement discussions exclusively.”  (Id., ¶ 6, Ex. 2.)  Cooper wrote, “I’m sure he’ll reach out to you.”  (Ibid.)

On October 18, 2022, defendants’ counsel had not heard from Mobasseri and sent another email asking for a two-week extension to file an answer.  (Keshishian Decl., ¶ 7, Ex. 3.)  Plaintiff’s counsel never responded.  (Id., ¶ 9.)  On January 10, 2023, defendants’ counsel wrote another email to plaintiff’s counsel stating he had just learned his clients’ defaults were entered on December 13, 2022, and asking plaintiff’s counsel to stipulate to setting aside the defaults.  (Id., ¶ 10, Ex. 4.)  Plaintiff’s counsel promptly replied but did not answer whether they would stipulate.  (Id., ¶ 11, Ex. 5.)  The reply instead criticizes defendants’ counsel and states a third attorney, Barbara Rohr, would respond.  (Ibid.)  Rohr did not respond as of January 28, 2023, the date defendants’ counsel executed his declaration.  (Id., ¶ 12.)

Defendants and defense counsel did not strategically choose to allow their defaults to be taken.  They had no reason to do that.  Instead of answering, they waited too long for a response from plaintiff’s counsel that never came.  Their defaults resulted from mistake or excusable neglect.

Mere professional courtesy by plaintiff’s counsel would have resolved these motions.  Though defendants should have answered or contacted plaintiff’s counsel again long before January 10, 2023, plaintiff’s counsel breached their duty to contact defendants’ counsel before requesting entry of defendants’ defaults.  “The obligation to advise opposing counsel of an impending default is part of an attorney’s responsibility to the court and the legal profession and takes precedence over the obligation to represent the client effectively.”  (Shapell Socal Rental Properties, LLC v. Chico's FAS, Inc. (2022) 84 Cal.App.5th 166, 213.) 

Plaintiff’s counsel again could have resolved this issue by stipulating to set aside defendants’ defaults.  They did not.  Instead, defendants filed these motions—but plaintiff did not oppose them.    

Plaintiff will suffer no prejudice from vacating defendants’ defaults.  Plaintiff filed this action on September 8, 2022.  The case is still young. 

Defendants’ motions to set aside default are granted.  The court hereby vacates the default of defendant Alen Marsign Stepanian dba Alen’s Auto Care & Sales.  The court hereby vacates the default of defendant Grandview Financial Services, Inc. or “Grandview Financial” as named in the complaint and entry of default.  Defendants are ordered to file their proposed answer (Keshishian Decl., Ex. 6) forthwith.