Judge Deirdre Hill, Case 22TRCV01332 2023-03-21 Tentative Ruling

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Responding Party: Plaintiff Lee & Associates Commercial Real Estate Services, Inc. – South Bay

The motion is GRANTED. Defendant is ordered to file and serve a responsive pleading forthwith.

On November 23, 2022, plaintiff Lee & Associates Commercial Real Estate Services, Inc. – South Bay filed a complaint against Old Place Realty LLC for (1) breach of contract, (2) account stated, (3) open book account, (4) quantum meruit, and (5) declaratory relief. Plaintiff alleges that defendant is the owner of real property located in Valencia. Plaintiff agreed to furnish brokerage services to defendant, namely the sale or the leasing of the property, for compensation based upon a commission fee schedule which was to be paid in two parts, a payment upon execution of the lease an a payment 180 days after the execution of the lease. After the execution of the lease with a third party, defendant has refused to pay plaintiff the commission plaintiff earned, as agreed upon.

On December 27, 2022, plaintiff filed an amendment to complaint correcting name of defendant from a California LLC to a Delaware LLC.

On January 5, 2023, plaintiff filed proof of service indicating personal service on January 4, 2023.

“The court may, upon 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 accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and 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 (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or 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.” CCP § 473(b).

Under CCP §473(b), defendant requests that the court vacate the default entered against defendant on February 6, 2023 based on attorney mistake, inadvertence, surprise, or neglect.

Defense counsel states in his declaration that he was contacted by defendant on Friday, February 3, 2023, and that defendant informed defense counsel that it was served but it was uncertain when the complaint was served upon it but thought the deadline to respond was approaching. He states that upon receiving this information, “I should have immediately checked online to determine whether a proof of service had been filed, and/or contacted plaintiff’s counsel to determine the response deadline. If I had done so, I would have learned that the response deadline was Monday, February 6, 2023. Instead, I waited to contact Plaintiff’s counsel until I received a signed fee agreement on February 8, 2023. On that day, I contacted counsel to inquire about the response deadline.” Richard Kolber decl., ¶2. He states that when plaintiff’s counsel responded, he learned that plaintiff’s counsel had filed a request for entry of default on February 6, 2023, and that plaintiff’s counsel was unwilling to stipulate to relief from the default. Id., ¶3.

In opposition, plaintiff argues that mandatory relief is unavailable because the default was entered before defense counsel was “retained.”

In reply, defendant contends that it did not carelessly allow default to be entered, and thus the case cited by plaintiff is not controlling.

The court finds that the default was the result of defense counsel’s mistake, inadvertence, surprise, or neglect. The evidence indicates that defendant contacted counsel before the default was entered to retain defense counsel. In any event, discretionary relief is warranted.