Judge: Curtis A. Kin, Case: BC683407, Date: 2022-12-22 Tentative Ruling

Case Number: BC683407    Hearing Date: December 22, 2022    Dept: 72

MOTION TO SET ASIDE DEFAULT

Date:               12/22/22 (8:30 AM)

Case:               Gari Barnett et al. v. John Humphries et al. (BC683407)

TENTATIVE RULING:

Cross-Defendants Gari Barnett and Lonnie Morgan’s Motion to Set Aside Default is GRANTED.

Cross-defendants Gari Barnett and Lonnie Morgan move to set aside the default entered against them on November 2, 2020, as to the First Amended Cross-Complaint.

As background for this motion, on July 27, 2020, defendant John Humphries served and filed a First Amended Cross-Complaint (“FAXC”) on cross-defendants Lonnie Morgan, Gari Barnett, Andre Brooks, Carol Collins, and Stephanie Mayor. Based on this service date, cross-defendants had up to August 28, 2022 (i.e., 30 days from the date of service plus two court days added for electronic service) to respond to the FAXC. (CCP §§ 430.40(a), 1010.6(a)(4)(B).) No response was filed by August 28, 2022.

On November 2, 2020, upon cross-complainant Humphries’ request, default was entered against cross-defendants Barnett and Morgan. The requests for entry of default asserted that counsel for cross-defendants Barnett and Morgan was served the requests by mail on November 2, 2020. On November 12, 2020, cross-defendants Barnett and Morgan, along with cross-defendant Collins, filed a motion to quash service of summons. On February 3, 2021, Humphries filed an opposition to the motion to quash service of summons. In the opposition, Humphries did not assert that he requested entry of default approximately three months earlier. On February 11, 2021, the Court denied the motion to quash service of summons.

On May 3, 2021, cross-defendants Barnett, Morgan, and Collins filed a demurrer and motion to strike as to the FAXC. On June 9, 2021, Humphries filed oppositions to the demurrer and motion to strike. In the oppositions, Humphries did not assert that he requested entry of default approximately seven months earlier.

On June 22, 2021, the Court sustained cross-defendants’ demurrer to the seventh cause of action for fraud and granted the motion to strike as to Humphries’ prayer for punitive damages. The Court ordered cross-defendants to file an Answer within 10 days.

On August 4, 2021, cross-defendants Barnett and Morgan, as well as cross-defendant Collins, filed an Answer. Humphries never moved to strike the Answer on the ground that default had already been entered against Barnett and Morgan.

On November 10, 2022, more than a year after the filing of the Answer, the Court conducted a second Final Status Conference, with a first Final Status Conference having occurred two days earlier. The Court noted that default was entered as to cross-defendants Barnett and Morgan on November 20, 2020. Cross-defendants Barnett and Morgan (hereafter referred to as cross-defendants) thereafter filed the instant motion to set aside the default. 

Counsel for cross-defendants avers that he had no notice that Humphries had sought default against his clients. (Tamer Decl. ¶ 4 [“On November 2, 2020, Cross-Complainant’s counsel, Complainant filed a Default against GARI BARNETT and LONNIE MORGAN without any meet and confer or notice to me”].) Counsel for cross-defendants also avers that he never received a copy of the request for default approved and signed by the Clerk. (Id.) Counsel declares that Humphries never raised the entry of default in the oppositions to cross-defendants’ motion to quash service of summons, demurrer, or motion to strike. (Tamer Decl. ¶¶ 5, 7. 11.) Nor did the Court mention the entry of default in the rulings to cross-defendants’ motions. (Id.) Counsel for cross-complainant Humphries never mentioned entry of default against cross-defendants before the Final Status Conference on November 10, 2022. (Tamer Decl. ¶ 8.) Counsel avers that, if he had known that default had been entered against cross-defendants, he would have filed the instant motion. (Tamer Decl. ¶ 14.)

Under the circumstances set forth above, counsel for cross-defendants Barnett and Morgan demonstrates that their default was entered due to counsel’s surprise, mistake, and/or neglect. (Tamer Decl. ¶ 9.) Counsel states he did not know prior to November 10, 2022 that Humphries had requested default against cross-defendants. Had counsel for cross-defendants known about that Humphries intended to seek default, counsel could have filed a responsive pleading before default was entered.

“[T]he 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…resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment….” (CCP § 473(b).) Because no judgment has been entered, the six-month deadline under the mandatory provision of CCP § 473(b) has not been triggered.  Further, because defense counsel has submitted a sworn affidavit admitting fault for default having been entered against his clients, relief from such default is mandatory, irrespective of whether the entry of default was due to counsel’s surprise (as he claims) or counsel’s woeful neglect or mistake.  (Martin Potts & Assoc. v. Corsair (2016) 244 Cal.App.4th 432, 438.)

Accordingly, the motion is GRANTED. The defaults entered against cross-defendants Gari Barnett and Lonnie Morgan on November 2, 2020, are SET ASIDE. The Answer filed on cross-defendants’ behalf on August 4, 2021 is deemed the operative response to the First Amended Cross-Complaint.

Humphries argues that, if the Court grants mandatory relief under CCP § 473(b), the statute provides for payment for “reasonably compensatory legal fees and costs” to Humphries or counsel. (See CCP § 473(b) [“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”].)  While that may be true, the Court finds that no amount of legal fees would be reasonable under the circumstances.  According to cross-defendants’ counsel, Humphries’ counsel never notified counsel for cross-defendants that he intended to seek default against cross-defendants. (Tamer Decl. ¶ 4.)  Humphries’ counsel does not contest otherwise. A party’s attorney seeking default has an ethical duty to notify opposing counsel that the attorney intends to seek a default. (Lasalle v. Vogel (2019) 36 Cal. App.5th 127, 135 [“The State Bar Civility Guidelines deplore the conduct of an attorney who races opposing counsel to the courthouse to enter a default before a responsive pleading can be filed. [Citation.] Accordingly, it is now well-acknowledged that an attorney has an ethical obligation to warn opposing counsel that the attorney is about to take an adversary’s default”].) If Humphries’ counsel warned counsel for cross-defendants that he would request entry of default, cross-defendants could have prepared and filed a responsive pleading before default was entered, thereby obviating the need for the instant motion.

Moreover—and equally if not more concerning—the Court notes that active litigation proceeded by all parties for approximately two years after entry of default. If Humphries asserted in the oppositions to the motion to quash service of summons, demurrer, or motion to strike that he had sought default, or if Humphries had sought entry of default judgment as required (see Cal. Rules of Ct. 3.110(g)), the entry of default against cross-defendants could have been addressed long ago, instead of via wasteful, post-default litigation proceedings.

This is not to say that counsel for cross-defendants is blameless. To be sure, cross-defendants do not deny receiving the FAXC. If counsel for cross-defendants had timely sought to quash service of summons within 30 days of service of the FAXC, Humphries would not have been entitled to request default.  Under the circumstances, one might readily find the conduct of counsel for cross-defendants inexcusable, but, as discussed above, mandatory relief under section 473(b) is available even for that which is inexcusable, below professional standards, and otherwise unbecoming.  (See Martin Potts, 244 Cal.App.4th at 438-439.)

However, when the circumstances are evaluated in their totality, it cannot be ignored that counsel for Humphries could have eliminated any need for this motion by exercising civility in informing counsel for cross-defendants of the intention to seek default or thereafter informing counsel that such default had been entered. For the foregoing reasons, the Court finds that no amount of legal fees and costs to Humphries would be reasonable.