Judge: Deborah C. Servino, Case: 30-2022-01253037, Date: 2022-11-04 Tentative Ruling

Defendant South Coast Springs Homeowners Associations’ motion to set aside the entry of default, is granted.

“[T]he law favors disposing of cases on their merits.”  (Fasuyi v. Permatex, Inc. (2008) 167 Cal.App.4th 681, 696.)  Any doubts in applying California Code of Civil Procedure section 473 “must be resolved in favor of the party seeking relief from default.”  (Ibid.)  If a party moves promptly for default relief, or if the granting of the relief from default will not prejudice the opposing party (other than losing the advantage of the default), only slight evidence will justify an order granting such relief.  (Iott v. Franklin (1988) 206 Cal.App.3d 521, 526.)

Code of Civil Procedure section 473, subdivision (b), permits a court to grant relief from a judgment, dismissal, order or other proceeding taken against a party on the grounds of “mistake, inadvertence, surprise or excusable neglect.”  A court may grant discretionary relief upon the moving party’s showing of mistake, inadvertence, surprise or excusable neglect.  (Leader v. Health Industries of Am., Inc. (2001) 89 Cal.App.4th 603, 615-616.)  Defendant carries the burden of establishing inadvertence, surprise, mistake or excusable neglect by a preponderance of the evidence.  (Transit Ads, Inc. v. Tanner Motor Livery, Ltd. (1969) 270 Cal.App.2d 275, 279.) 

Defendant’s motion is timely.  Defendant submitted a copy of its proposed demurrer.  (VonDielingen Decl., Exh. C.)

Here, Plaintiff took Defendant’s default on May 23, 2022. (ROA 13.) Defendant filed the instant before the six-month deadline. Defendant met its burden of showing that it brought the motion “within a reasonable time.” Defendant proffers evidence that it failed to timely respond to the Complaint as it was in the process of meeting and conferring with Plaintiff as to a demurrer.  General counsel conducted a teleconference with Plaintiff on April 27, 2022.  (VonDielingen Decl., at ¶ 3.) It appears that at no time did Plaintiff alert Defendant that he was going to seek default against it.  Defendant did not receive a notice of entry of default.  Defense counsel contacted Plaintiff, requesting Plaintiff stipulate to set aside the entry of default.  When Plaintiff refused, Defendant filed the instant motion on August 18, 2022.

Plaintiff did not warn Defendant that he would request entry of default.  Instead, Plaintiff requested entry of default less than two months after Defendant was served.   “The quiet speed of plaintiffs' attorney in seeking a default judgment without the knowledge of defendants' counsel is not to be commended.” (Smith v. Los Angeles Bookbinders Union (1955) 133 Cal.App.2d 486, 500.)  As explained in Lasalle v. Vogel (2019) 36 Cal.App.5th 127, 135: “In contrast to the stealth and speed condemned in Bookbinders, courts and the State Bar emphasize warning and deliberate speed. 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. [Citation.]”  While Plaintiff is a self-represented litigant, a warning to Defendant does not appear to be any less warranted.

Accordingly, the default entered on May 23, 2022 is hereby vacated.  No later than November 18, 2022, Defendant shall file its demurrer.  Defendant must reserve the hearing for the demurrer through the Court’s website.  

Defendant shall give notice of the ruling. 

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