Judge: Daniel S. Murphy, Case: 21STCV45587, Date: 2023-03-10 Tentative Ruling

Case Number: 21STCV45587    Hearing Date: March 10, 2023    Dept: 32

BACKGROUND

            On December 14, 2021, Plaintiff Michael Levine filed this action for legal malpractice against Defendants Matthew J. Eandi, William John Fitzpatrick, and Eandi Fitzpatrick LLP. Defendants failed to respond to the complaint, and default was entered on March 25, 2022. On May 11, 2022, Plaintiff filed the operative First Amended Complaint, asserting (1) legal malpractice, (2) breach of fiduciary duty, and (3) fraud. Defendants once again failed to respond to the complaint, and default was entered on August 4, 2022, and judgment was granted against Defendants on February 1, 2023.

            On February 6, 2023, Defendants filed the instant motion to set aside the default and judgment on the grounds of attorney mistake, specifically a calendaring error by Defendant Eandi.

LEGAL STANDARD

“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.” (Code Civ. Proc., § 473(b).) Section 473(b) also provides for mandatory relief in instances of attorney mistake, “unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.” (Ibid.)

DISCUSSION

I. Mandatory Relief

            “[T]he mandatory relief provision only applies in the case of an ‘attorney’ representing a ‘client.’” (Esther B. v. City of Los Angeles (2008) 158 Cal.App.4th 1093, 1099.) “[T]he plain language of section 473, subdivision (b), precludes mandatory relief in favor of a ‘pro per’ party . . . .” (Id. at p. 1100.) “The purpose of the mandatory relief provision is to relieve the innocent client of the burden of the attorney's fault, place that burden on the malfeasant attorney and avoid triggering more litigation in the form of a malpractice suit.” (Ibid.) This principle has no application to a party representing themselves. “In these situations the ‘client’ is not innocent, there is no one to whom the blame can be shifted and there is no risk of a malpractice action because the client would have to sue herself.” (Ibid.) Where the party seeking relief and the attorney at fault are one and the same, “[t]he attorney declaration of fault . . . [is] of no legal effect for purposes of granting mandatory relief from default.” (McClain v. Kissler (2019) 39 Cal.App.5th 399, 405.)

            Here, Defendants are the two attorneys and their law firm who represented Plaintiff in the underlying lawsuit and are now being sued for malpractice. Defendants are also representing themselves in this malpractice action. Because Defendants are their own attorneys, there is no client who needs to be relieved from their attorney’s mistake. Defendants cite to caselaw holding that relief is available in cases where an entity is being represented by in-house counsel and in cases where the client is also an attorney. (See Gutierrez v. G & M. Oil Co. Inc. (2010) 184 Cal.App.4th 551, 562; Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 770-77.) However, in each of these cases, the attorney and client are distinct. By contrast, Defendants are representing themselves in this case. The law is clear that mandatory relief is inapplicable in such instances. (See Esther B., supra, 158 Cal.App.4th at pp. 1099-1100; McClain, supra, 39 Cal.App.5th at p. 405.)

II. Discretionary Relief

            a. Excusable Error

Discretionary relief is only available in instances of excusable error. (Code Civ. Proc., § 473(b).) “In determining whether the attorney's mistake or inadvertence was excusable, the court inquires whether a reasonably prudent person under the same or similar circumstances might have made the same error.” (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 258.) “Conduct falling below the professional standard of care, such as failure to timely object or to properly advance an argument, is not therefore excusable. To hold otherwise would be to eliminate the express statutory requirement of excusability and effectively eviscerate the concept of attorney malpractice.” (Ibid.)

            Defendants claim that they failed to respond to the complaint because of a calendaring error by Defendant Eandi. (Eandi Decl. ¶¶ 9-11.) The Court finds this error to be inexcusable given the circumstances. Defendants had already defaulted once before for failure to respond, so they should have been particularly keen as to the deadlines in this case. Defendants expressly acknowledged that the deadline to respond to Plaintiff’s FAC was June 27, 2022. (Krueger Decl., Ex. 2.) Although Defendants filed for an automatic thirty-day extension on June 27, 2022, they still failed to file a responsive pleading thirty days later. This was despite Plaintiff’s warning that he would file for a second default if Defendants failed to respond again. (Id., ¶ 7.) Defendants also ignored Plaintiff’s repeated correspondence asking for Defendants’ position regarding the demurrer that they were supposedly planning to file. (Id., ¶ 8, Ex. 3.) These facts demonstrate that Defendants were not diligently pursuing the case and did not act as a reasonably prudent person would under the circumstances.

            The Court also notes that Defendants have failed to attach a responsive pleading to their motion, as required by Section 473(b). Thus, even now, Defendants flout their obligation to file a responsive pleading. “Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted.” (Code Civ. Proc., § 473(b).)   

            b. Diligence in Seeking Relief

An application for relief “shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (Code Civ. Proc., § 473(b).) “[R]elief is not warranted unless the moving party demonstrates diligence in seeking it.” (Huh v. Wang (2007) 158 Cal.App.4th 1406, 1420.) While the six-month deadline represents an outer limit, the party seeking relief must meet the additional burden of demonstrating diligence. (Id. at p. 1422.) An unexplained delay serves as a basis for denying relief. (Ibid.)

            The default in this case was entered on August 4, 2022. Defendants represented in an August 19, 2022 case management conference that they would be immediately filing for relief from the default. Defendants indeed reserved a September 28, 2022 hearing date for the motion, and the Court continued the CMC to that date. However, Defendants did not appear at the September 28, 2022 CMC and did not file this motion until February 6, 2023, the very last day of the six-month deadline. This unexplained delay demonstrates a lack of diligence and serves as an independent basis for denying relief.  

III. Notice of Default

            “The ethical obligation to warn opposing counsel of an intent to take a default is now reinforced by a statutory policy that all parties ‘cooperate in bringing the action to trial or other disposition.’ ([CCP] § 583.130.) Quiet speed and unreasonable deadlines do not qualify as ‘cooperation’ and cannot be accepted by the courts.” (Lasalle v. Vogel (2019) 36 Cal.App.5th 127, 137.)

            Relying on Lasalle, Defendants argue that they are entitled to relief because Plaintiff failed to notify them of his intent to file for default. However, Lasalle was decided on its particular facts: “We do not hold that every section 473 motion supported by a colorable declaration must be granted. Since every section 473 motion must be evaluated on its own facts, we can hold only that this one should have been granted.” (Lasalle, supra, 36 Cal.App.5th at p. 140.) In Lasalle, the plaintiff “mail[ed] a letter on Thursday in which he demanded a response by Friday.” (Id. at p. 138.) The court referred to this as a “short-fuse deadline” that failed to provide a “genuine warning.” (Ibid.) By contrast, Defendants in this case had already defaulted once before. It is difficult to imagine Defendants being surprised by a second default after they failed to respond again. Plaintiff also did expressly warn Defendants that their failure to respond again would result in another default. (Krueger Decl. ¶ 7.) Plaintiff did not impose any short-fuse deadline similar to the one in Lasalle. Instead, the record shows that Plaintiff continuously attempted to communicate with Defendants regarding their responsive pleading, to no avail.

            After one prior default, missed court hearings, ignored communications, and a second failure to answer the complaint, Plaintiff has suffered enough prejudice. Defendants have not been diligent in defending this lawsuit or seeking this relief. The policy in favor of resolution on the merits must be balanced against “policies implicating judicial efficiency, a fair legal process and timely access to the courts.” (McClain, supra, 39 Cal.App.5th at p. 405.)

CONCLUSION

            Defendants’ motion to set aside default is DENIED.