Judge: Edward B. Moreton, Jr., Case: 23SMCV00650, Date: 2023-05-15 Tentative Ruling

Case Number: 23SMCV00650    Hearing Date: May 15, 2023    Dept: 205

Superior Court of California

County of Los Angeles – West District

Beverly Hills Courthouse / Department 205

XCVI, LLC, Plaintiff, v. WILHEMINA WEST, INC., et al., Defendants. Case No.: 23SMCV00650 Hearing Date: May 15, 2023 [TENTATIVE] ORDER RE: DEFENDANTS WILHEMINA WEST INC. AND WILHEMINA INTERNATIONAL INC.’S MOTION TO SET ASIDE DEFAULT

MOVING PARTY: Defendants Wilhemina West, Inc. and Wilehmina International, Inc.

RESPONDING PARTY: Plaintiff XCVI, LLC

BACKGROUND

This action stems from a dispute between a clothing company and a modeling agency. Plaintiff XCVI is a “high end” clothing brand principally located in Sherman Oaks, California. Defendant Wilhemina International Inc. is a well-known modeling agency and operates in California through its subsidiary, Defendant Wilhemina West Inc. (collectively “Wilhemina”).

XCVI retained the services of Wilhemina to hire non-party model Jourdan Whitehead for a photo shoot. Pursuant to Wilhemina’s standard agreement, XCVI was prohibited from paying models directly. Instead, the agreement required XCVI to pay Wilhemina fees within 30 days of

receipt of Wilhemina’s invoice. Wilhemina invoiced XCVI for the services of Whitehead, and XCVI promptly paid the invoice within 5 days of receipt.

Whitehead subsequently sued XCVI for waiting time penalties, claiming she should have been paid for her services on the next regular payday following the performance of her services. XCVI settled with Whitehead, and is now suing Wilhemina for the settlement amount.

This hearing is on Wilhemina’s motion to set aside default. Wilhemina argues that its failure to timely respond to the complaint was due solely to its counsel’s mistake and inadvertence. Counsel was pre-occupied with a trial in New York for another client and had failed to properly calendar the time to respond.

LEGAL STANDARD

Code Civ. Proc. §473, subd. (b) provides for two distinct types of relief from a default -- commonly differentiated as “discretionary” and “mandatory.” “Under the discretionary relief provision, on a showing of ‘mistake, inadvertence, surprise, or excusable neglect,” the court has discretion to allow relief from default. Under the mandatory relief provision, on the other hand, upon a showing by attorney declaration of ‘mistake, inadvertence, surprise, or neglect,’ the court must vacate any ‘resulting default judgment or dismissal entered.’” (Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 615-616.) Applications seeking relief under the mandatory provision of §473 must be “accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect.” (Code Civ. Proc. §473, subd. (b).) 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.” (Id.)

The application for relief must be made no more than six months after the judgment, dismissal, order, or proceeding was taken. (Id.) And the application must be “accompanied by a copy of the answer or other pleading proposed to be filed therein”. (Id.)

“It is settled that the law favors a trial on the merits. . . and therefore liberally construes section 473.” (Bonzer v. City of Huntington Park (1993) 20 Cal.App.4th 1474, 1477.) “Doubts in applying section 473 are resolved in favor of the party seeking relief from default. . . and if that party has moved promptly for default relief, only slight evidence will justify an order granting such relief.” (Id. at 1477-78.)

DISCUSSION

Wilhemina seeks mandatory relief from default based on its counsel’s mistake and inadvertence. Its motion is timely. Code Civ. Proc. §473 provides that the application for relief must be made no more than six months after judgment. As judgment had not yet been entered, there is no time limit on the motion to set aside. In any event, default was entered on March 21, 2023, and the motion was filed on April 14, 2023, fewer than four weeks from entry of default.

The motion is also procedurally proper. It is accompanied by a copy of the proposed answer. It is also supported by counsel’s affidavit that because of a trial in New York, he was preoccupied and failed to properly calendar the time to respond to the complaint or seek an extension to respond. (Heerde Decl. ¶¶5-6.)

On these facts and given the liberal policy favoring a trial on the merits and requiring only slight evidence to justify an order granting relief, the Court concludes that the requirements for mandatory relief have been met. (See Communidad en Accion v. Los Angeles City Council (2013) 219 Cal.App.4th 1116, 1134-35 (an isolated calendaring mistake was sufficient basis to grant relief from default); Mehdizadeh v. Mercedes Benz of United States, 2021 Cal. Super. Lexis 78937 at *3 (“An attorney’s calendaring error is sufficient to warrant relief under CCP § 473(b).”); Ly v. Hernandez, 2019 Cal. Super. LEXIS 62437 at *1 (granting mandatory relief where counsel mistakenly failed to calendar an OSC hearing).)

Plaintiff argues that Wilhemina unreasonably delayed in filing the motion because it discovered the entry of default on March 23, 2023 and did not file its motion until three weeks later on April 17, 2023. In reply, Wilhemina argues that promptly after it became aware of the default, it sought to avoid motion practice by attempting to enter into a stipulation with Plaintiff to set aside the default. Wilhemina reached out to Plaintiff’s counsel within three days of receiving the request for entry of default, and again on March 27, March 28 and April 4. (Heerde Decl. ¶¶8, 10-12.) Plaintiff finally responded on April 10, refusing to stipulate. Wilhemina then filed the motions to set aside by the end of the week on Friday, April 14. These facts do not support a finding of unreasonable delay. And in any event, as noted above, there is no time limit to file a motion to vacate default when no judgment has been entered. If relief is granted based on the mandatory relief prong of Code Civ. Proc. § 473(b), the court shall direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties. (Code Civ. Proc. § 473(b).) Under Rogalski v. Nabers Cadillac (1992) 11 Cal.App.4th 816, 823, the “fees” referenced in § 473(b) are those incurred in obtaining the default only, not the fees incurred opposing the motion to vacate. Plaintiff seeks $1,500 in attorneys’ fees and costs, but these fees include those incurred in opposing the motion to vacate. The Court awards $975, based on Plaintiff’s counsel’s hourly rate of $650 multiplied by one and a half hours, representing the reasonable time the Court believes it would have taken to complete the form requesting the clerk’s entry of default. The Court further declines Plaintiff’s request to impose an additional penalty of $1000 upon Wilhemina.

CONCLUSION

Based on the foregoing, the Court GRANTS Wilhemina’s motion to set aside default. The Court awards $975 in sanctions against Wilhemina’s counsel and in favor of Plaintiff.

IT IS SO ORDERED.

DATED: May 15, 2023 ___________________________

Edward B. Moreton, Jr.

Judge of the Superior Court