Judge: Audra Mori, Case: BC659877, Date: 2022-08-24 Tentative Ruling

Case Number: BC659877    Hearing Date: August 24, 2022    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background

Plaintiff Hector Javier Pena filed this action against Inter Stone Tools, Inc. (“Inter Stone”) and Luigi Interlandi (“Luigi”) for injuries Plaintiff sustained when acetone ignited and exploded near Plaintiff.  Plaintiff was in the scope of his employment with Defendants when the incident occurred.  The incident allegedly occurred on August 23, 2016, and Plaintiff filed the complaint on May 2, 2017.  On May 15, 2017, Plaintiff filed Amendments to Complaint naming Marina Interlandi (“Marina”) (collectively, with Luigi, the “Interlandis”) as Doe 1, and naming Kevin Moda (“Moda”) as Doe 2.  On March 22, 2018, a Request for Dismissal was filed dismissing the entire action with prejudice.  However, this dismissal was set aside on May 14, 2018.

Thereafter, Plaintiff filed an application for publication of the summons and complaint, which the Court granted as to Defendants the Interlandis on January 10, 2019.  Plaintiff then obtained Luigi Interlandi’s default on April 9, 2019, and obtained Marina Interlandi’s default on July 17, 2019.  On September 19, 2019, Plaintiff filed a Request for Dismissal dismissing Inter Stone and Moda without prejudice.  A default judgment in the total amount was then entered against the Interlandis on January 6, 2020.

The Interlandis then filed a motion to set aside the default and default judgment, and a motion to dismiss the action.  On March 3, 2021, the Court issued an order granting the motion to set aside the default and default judgment but denying the motion to dismiss the action under CCP § 583.210 because the Interlandis were not served with the summons and complaint within three years of the action being filed.  In denying the motion to dismiss, the court held in pertinent part, “the time for Plaintiff to serve the Interlandis was tolled from 1/6/20, the date the erroneous default judgment was obtained, to the expiration of the three-year period.”  (Order Granting Defendants’ Motion to Set Aside, filed March 3, 2021.) 

Plaintiff later filed proof of service of the summons and complaint on Luigi and Marina showing substituted service on each on April 25, 2021.  (Proofs of Service filed June 11, 2021.)  The Interlandis then filed a motion to quash service of summons and complaint, which was denied on September 14, 2021.  After the Interlandis failed to file an answer following the denial of their motion to quash, Plaintiff obtained their defaults on October 6, 2021.  Plaintiff then obtained a default judgment against the Interlandis on July 5, 2022. 

On June 7, 2022, the Interlandis filed the instant motion to set aside default and any default judgment against them.  Plaintiff opposes the motion.  As of August 19, 2022, no reply has been received.

2. Motion to Set Aside Default and Default Judgment

CCP § 473(b) states:

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. Application for this relief … shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken. … Notwithstanding any other requirements of this section, 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 … 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. 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.

“To obtain mandatory relief under section 473, plaintiffs' counsel need not show that his or her mistake, inadvertence, surprise or neglect was excusable. No reason need be given for the existence of one of these circumstances. Attestation that one of these reasons existed is sufficient to obtain relief, unless the trial court finds that the dismissal did not occur because of these reasons.”  (Graham v. Beers (1994) 30 Cal.App.4th 1656, 1660.) 

The affidavit of fault properly supports § 473(b) mandatory relief if executed by any attorney representing the party and whose fault caused the default or dismissal—even if that attorney is not the party's attorney of record in the subject civil case, (Younessi v. Woolf (2016) 244 Cal.App.4th 1137, 1147-1148,; SJP Ltd. Partnership v. City of Los Angeles (2006) 136 Cal.App.4th 511, 517-518) and/or is licensed to practice only in another jurisdiction.  (Rodrigues v. Sup.Ct. (Joaquim) (2005) 127 Cal.App.4th 1027, 1037.)

Admittedly, such relief is not available when the error is the client’s alone.  (Martin Potts & Associates, Inc. v. Corsair, LLC (2016) 244 Cal.App.4th 432, 442.)  However, there is a split in authority as to whether relief is available when the error lies partly with the client and partly with the attorney.  (Compare Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1248 [relief available only if client is “totally innocent of any wrongdoing”] with Benedict v. Danner Press (2001) 87 Cal.App.4th 923, 932 [relief available as long as client did not engage in intentional misconduct]; see generally Gutierrez v. G & M Oil Co, Inc. (2010) 184 Cal.App.4th 551, 557–558 [detailing split of authority].) 

Where the cause of the default is in dispute, the attorney’s affidavit can serve as “ ‘a causation testing device.’ ”  (Martin Potts & Associates, Inc., 244 Cal.App.4th at 442.)  “‘Neglect’ includes an “omission” [Citation], including the failure to give “ ‘proper attention to a person or thing, whether inadvertent, negligent, or willful’ ” [Citations].”  (Id. at 443.)  Consequently, an attorney’s acknowledgment that he or she received the case before the default was entered and did nothing qualifies as not giving proper attention, and thus as neglect.  (Id.; compare with Cisneros v. Vueve (1995) 37 Cal.App.4th 906, 912 [affirming trial court order denying § 473 relief because the lawyer was not representing the clients when their defaults were entered and therefore was not the proximate cause of their entry].) 

Here, the Interlandis move to set aside the default and default judgment against them pursuant to the discretionary and mandatory provisions of CCP § 473(b) arguing that the default was the result of the Interlandis’ counsel, Thomas D. Sands (“Sands”), mistake, surprise, inadvertence, and/or excusable neglect.  The Interlandis assert that Sands accepts responsibility for the errors that led to the entry of default.  Sands submits a declaration stating that his office has been working remotely since March 18, 2020, and has experienced a reduction in staff associated with the Covid-19 pandemic.  (Mot. Sands Decl. ¶ 5-6.)  Further, Sands attests he was suspended from the practice of law beginning on October 22, 2021, for 90 days and was reinstated on January 23, 2022.  (Id. at ¶ 6.)  Sands states that he admits his errors in calendaring the matter and should have instructed his staff to calendar the due date for a responsive pleading.  (Id. at ¶ 10.) 

In opposition, Plaintiff argues that the motion is untimely under CCP § 473(b), and that the Interlandis are not entitled to relief under the mandatory relief provision of CCP § 473.  Plaintiff contends the Interlandis do not establish a causal link between Sands’s errors and the entry of default, as default was entered because the Interlandis evaded serve, and there is no declaration regarding what Sands was hired to do.  Plaintiff asserts every appearance and pleading filed by Sands indicated that Sands was specially, not generally, retained, and thus, at the time of the default, he was not the Interlandis’ counsel.  Plaintiff avers the Interlandis are not blameless for the default, so they are ineligible for relief under CCP § 473(b). 

As Plaintiff argues, to the extent the Interlandis move for relief pursuant to the discretionary provision of § 473(b), the motion is untimely.  While the Interlandis contend the motion is timely because a Request for Entry of Default was filed on March 22, 2022, this filing concerned a Request for Court Judgment, not entry of default.  Further, this filing, and the Court’s records, show that the Interlandis’ defaults were entered on October 6, 2021.  The Interlandis then did not file this motion to set aside until June 7, 2022, approximately eight months after their defaults were entered.  Setting aside a default judgment, when a court is unable to set aside the underlying default, is an “idle act” the Court should not take, because “it would be the duty of the court immediately to render another judgment of like effect, and the defendants, still being in default, could not be heard in opposition thereto.”  (Howard Greer Custom Originals v. Capritti (1950) 35 Cal.2d 886, 888-89; see also Pulte Homes Corporation v. Williams Mechanical, Inc. (2016) 2 Cal.App.5th 267, 273.)  Accordingly, the general rule is that the six-month period within which to bring a motion to vacate under the discretionary provision of § 473 runs from the date of the default and not from the judgment taken thereafter.  (Rutan v. Summit Sports, Inc. (1985) 173 Cal.App.3d 965, 970.) 

On the other hand, the six-month limitation period for mandatory relief commences at the time the default judgment is entered, rather than the earlier date the default is entered.  (Sugasawara v. Newland (1994) 27 Cal.App.4th 294, 296-97 [“it makes little sense to vacate a judgment without also vacating an underlying default....”].)  Consequently, if the Interlandis demonstrate they are entitled to relief under the mandatory provision of CCP § 473(b), the motion would be timely. 

Sands’s declaration states he erred in calendaring this matter and the due date for a responsive pleading.  (Mot. Sands Decl. ¶ 10.)  This would suggest that Sands’s error was the proximate cause of the defaults entered against the Interlandis.  While Plaintiff contends that the Interlandis have actively evaded service and committed other wrongs in this action, Plaintiff does not establish that the Interlandis are primarily to blame for or the proximate cause of the defaults entered against them.  The Court’s records show that Sands has appeared on behalf of the Interlandis in the proceedings in this matter, including the Interlandis’ motion to quash service of summons that was denied on September 14, 2022.  Plaintiff filed a Notice of Ruling with proof of service concerning this order showing that it was served on Sands.  However, the Request for Entry of Default filed on October 6, 2021, and Request for Court Judgment filed March 22, 2022, show that each request was seemingly mailed to the Interlandis directly, but not Sands.  This corroborates Sands assertion that his office was never provided with notice of the Request for Entry of Default or Judgment.  (Mot. Sands Decl. ¶ 9.)  Sands declaration, thus, establishes mistake, inadvertence or neglect in connection the failing to file a responsive pleading for the Interlandis prior to the entry of default against them. 

The motion is therefore granted.  (CCP § 473(b).)  The default and default judgment entered against the Interlandis are set aside.  The Interlandis answer attached to their motion is deemed filed this day.  The Court sets a Trial Setting Conference for 10:00 a.m. on August 29, 2022.  Counsel for the parties must be prepared to provide the court with the deadline by which this matter must be brought to trial and to set a schedule accordingly.      

The Interlandis are ordered to give notice. 

PLEASE TAKE NOTICE:

• Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement.
• If a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept31@lacourt.org with the Subject line “SUBMIT” followed by the case number.  The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.  
• Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.  You should assume that others may appear at the hearing to argue.  
• If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.  After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave. 

Dated this 24^th day of August 2022