Department 58

Hearing Date: April 4, 2023

Case Name: Porsha Gray v. Olivia Izarraraz

Case No.: 22STCV30748

Motion: Motion to Vacate Default and Default Judgment

Moving Party: Defendant Olivia Izarraraz

Responding Party: Plaintiff Porsha Gray

Tentative Ruling: The motion to vacate default and default judgment is granted.

Background

Plaintiff Gray has sued Defendant Izarraraz, for six causes of action involving a disputed property line. Plaintiff and defendant have been neighbors for approximately ten years. (Compl., ¶¶ 12-13.) In early 2022, plaintiff hired a land surveyor to examine the boundary between their properties. (Id., ¶ 14.) The surveyor determined defendant had erected a fence that overran the property line, incorporating part of plaintiff’s neighboring parcel. (Id., ¶¶ 14-15.) Plaintiff filed her complaint against defendant on September 20, 2022 and effected personal service on September 23.

Plaintiff obtained a clerk’s default on October 24, 2022. On January 27, 2023, plaintiff requested judgment on the default, which has not been granted. An OSC Re: Entry of Default Judgment has been continued to April 27, 2023.

On March 6, 2023, defendant timely moved to set aside and vacate the default pursuant to Code of Civil Procedure section 473. On March 20, 2023, Plaintiff filed opposition to the motion. While agreeing that Defendant is likely entitled to the relief she seeks, Plaintiff seeks to condition relief on Defendant’s payment of fees and costs incurred in obtaining default.

Legal Standard

Code of Civil Procedure section 473, subdivision (b) provides for either discretionary or mandatory relief from certain prior actions or proceedings in the trial court. (Luri¿v. Greenwald¿(2003) 107 Cal.App.4th 1119, 1124.)¿¿

“ ‘Under the discretionary relief provision, on a showing of “mistake, inadvertence, surprise, or excusable neglect,”¿the court has discretion to allow relief from a “judgment, dismissal, order, or other proceeding taken against”¿a party or his or her attorney.¿¿Under the mandatory relief provision, on the other hand, upon a showing by attorney declaration of “mistake, inadvertence, surprise, or neglect,”¿the court shall vacate any “resulting default judgment or dismissal entered.”’ [Citation.] Applications seeking relief under the mandatory provision of section 473 must be ‘accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect.’ The mandatory provision¿further adds that ‘whenever relief¿is granted based on an attorney’s affidavit of fault [the court shall] direct the attorney to pay reasonable compensatory legal fees and costs¿to opposing counsel or parties.’¿” (Ibid.; Code Civ. Proc., § 473, subd. (b).)¿¿

The party seeking such relief must do so “within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (Code Civ. Proc., § 473, subd. (b); see Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980 [“because more than six months had elapsed from the entry of default, and hence relief under section 473 was unavailable”] (Rappleyea).) This time limit is jurisdictional. (Austin v. Los Angeles Unified School Dist. (2016) 244 Cal.App.4th 918, 928; Rappleyea, supra, 8 Cal.4th at pp. 981–982 [“‘Beyond this period there is a strong public policy in favor of the finality of judgments and only in exceptional circumstances should relief be granted.’ ”].) That said, where a party seeks mandatory relief on the basis of attorney neglect, the court conducts no inquiry into a party’s diligence in seeking relief; as long as the application is made in proper form and six months have not passed, the court must grant relief “notwithstanding any other requirements of [the] section … .” (Code Civ. Proc., § 473, subd. (b).)

Discussion

The clerk entered default prematurely, and the default is therefore void.

An answer to a complaint must generally be filed within thirty (30) days of date of service of summons and complaint, if service is effected in person (as it was here). (See Code Civ. Proc., § 412.20, subd. (a)(3).) Once those thirty days have expired, the clerk may enter default upon written application of the plaintiff. (Id., § 585, subd. (a).) As is the case with any act provided or required by law to be performed with a specified period of time, if the final day falls on a holiday (including but not limited to Sundays), the period is extended to the next day that is not a holiday. (Id., §§ 12, 12a.) (All further undesignated statutory references are to the Code of Civil Procedure.)

Here, although plaintiff filed her complaint on September 20, 2022, her proof service reflects she did not serve defendant until September 23. Thirty days after September 23 is October 23 – which is a Sunday. Thus, the period during which defendant was required to answer did not expire until the end of the following day, Monday, October 24, 2022. Yet the clerk entered judgment on October 24, not after.

The clerk “derives all his power” to enter default from section 585, and “in each case it must appear that what he did was within the authority conferred on him by [that] statute.” (Baird v. Smith (1932) 216 Cal. 408, 410-411.) Thus, “a default prematurely taken[ ] is void and may be set aside at any time.” (Id., at p. 410.)

Plaintiff does not dispute the dates of these events. Plaintiff claims “[plaintiff’s] default as properly taken in late October 2022 when her responsive pleading deadline had expired.” (Opp. 2:8-9.) But, as defendant has pointed out and the court noted above, this is not accurate. While defendant did not respond within thirty (30) days – and she does not claim she did – her responsive pleading deadline had nonetheless not yet expired when default was requested and entered.

Thus, the court grants defendant’s motion to vacate and set aside the clerk’s default entered against her, as it was untimely entered and void from the outset.

The parties agree that relief should be granted pursuant to Code of Civil Procedure section 473.

Defendant has also moved, within six months of entry of default, to vacate the default based on attorney neglect. While defendant’s attorney does not declare he was negligent per se, the import of his declaration is clear: while he was aware there had been an unanswered complaint served on his client, he did not investigate, move to vacate default, or instruct his client to file an answer. (See Declaration of Blake S. Slater (Slater Decl.) ¶¶ 7-9.) This was a mistake.

Relief under Code of Civil Procedure section 473, subdivision (b) is mandatory where a party applies for relief on the basis of attorney mistake or neglect, attaching a declaration from her attorney to that effect. Defendant has done so here.

Even were the judgment not void from the outset due to the plaintiff’s and the clerk’s failure to abide by section 585, defendant would be entitled to relief under section 473.

The court is not authorized to impose sanctions as a condition of setting aside a default.

Plaintiff’s opposition relies on arguments made under the “discretionary relief” portion of section 473. Under the “mandatory relief” portion of section 473, the court does not have discretion to deny a plaintiff relief, regardless of whether an application is made “within a reasonable time” (Opp. 6:4.), as long as the application and attorney affidavit are filed within six months of a party’s default. (See Code Civ. Proc., § 473, subd. (b) [“notwithstanding any other requirements, the court shall, whenever an application … is made no more than six months after entry of judgment” (italics added)].)

Plaintiff is correct that the court may order an attorney to pay reasonable compensatory fees and costs to opposing counsel or parties where an attorney attests a default was his or her responsibility. (Id., § 473, subds. (b)-(c).) However, the law does not authorize the court to make a set-aside order conditional on payment of sanctions, as plaintiff requests. In fact, section 473 does not even authorize the court to sanction defendant directly; the court may only order her attorney to refund fees and costs incurred as the result of his or her neglect.

But the Court need not address its authority to impose sanctions under section 473. As noted above, the default was void from the outset because it was both requested and entered before defendant’s time to respond expired.

The court thus grants defendant’s motion, vacates and sets aside the default entered by the clerk on October 24, 2023, adopts as defendant’s answer Exhibit B to her moving papers, and denies plaintiff’s request for sanctions. Defendant shall serve and file her Answer within ten days of this ruling.