Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

 

BACKGROUND 

This is a breach of contract case.  Plaintiff Forwardline Financial, LLC alleges Defendants Estrada Building Services, LLC (“EBS”) and Abraham Estrada (“Estrada”) owe it a debt in the amount of approximately $81,000.  Plaintiff filed a complaint alleging four claims for breach of contract, open book account, account stated and money lent.   

Plaintiff served the Complaint on Defendant Estrada by substitute service on March 2, 2024, and therefore a responsive pleading was due on April 11, 2024.  There is no proof of service for Defendant EBS.  Estrada did not respond by April 11, 2024, and on April 22, 2024, the Clerk entered default against Estrada.     

This hearing is on EBS and Estrada’s motion to set aside default.  Defendants submit the declaration of counsel who attests he mis-calendared the response date, and when he later attempted to file an answer, his answer had the incorrect case number.  When he finally corrected his mistake and re-filed the answer on April 24, 2024, the Clerk had already entered default against Estrada.  There was no opposition filed as of the posting of this tentative ruling.     

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 

There is no default against EBS, and therefore, the Court will treat this motion as solely relating to Estrada. 

Estrada’s motion to set aside default is timely.  Default was entered on April 22, 2024, and Estrada filed his motion on September 16, 2024, within six months of the entry of default.   

However, Estrada has not satisfied the requirement of attaching a copy of the proposed responsive pleading with his motion to set aside.  (Code Civ. Proc., §473.5(b).)  Notwithstanding, Estrada has already filed an answer on April 24, 2024, and therefore, this requirement has been satisfied in principle. 

The Court next addresses whether Estrada has met the substantive requirements for mandatory relief.  Defense counsel’s declaration avers that the failure to file a timely responsive pleading was due to attorney mistake or neglect.  (Simons Decl. ¶5.)  Counsel attests that his office mis-calendared the responsive pleading deadline.  (Id.)  When Defendants advised counsel that they had received a request for default on April 12, 2024, counsel’s office staff incorrectly informed Defendants that everything was being handled.  (Id.)  While conducting a monthly review of his case files, counsel discovered the mistake on April 21, 2024, and promptly filed a responsive pleading on behalf of both Defendants.  (Id. ¶6.)  However, the answer was rejected because it had an incorrect case number.  (Id. ¶8.)   Counsel then re-submitted the answer on April 24, 2024, but in between the filing of the original incorrect answer and the new answer, Plaintiff had obtained an entry of default against Estrada.  (Id. ¶9.) 

While these combined errors are arguably inexcusable, the mandatory relief provisions require only a sworn declaration from counsel attesting to his or her “mistake, inadvertence, surprise or neglect.”  No showing that the neglect was excusable is required.¿(Avila v. Chua (1997) 57 Cal.App.4th 860, 868-869¿(“To obtain relief under the mandatory provisions, plaintiffs' counsel need not show that his or her mistake, inadvertence, surprise or neglect was excusable. No reason need be given for the existence of one of these circumstances.¿Attestation that one of these reasons existed is sufficient to obtain relief, unless the trial court finds that the dismissal did not occur because of these¿reasons.”); Nmh Broadway v. Carrillo, 2017 Cal. Super. LEXIS 57900 at *2-*3¿(mandatory relief¿granted even though counsel’s¿calendaring errors¿and other mistakes were inexcusable).)¿ Accordingly, the Court will vacate the default pursuant to the¿mandatory relief¿provisions of¿Code Civ. Proc. §473(b). 

CONCLUSION 

For the foregoing reasons, the Court GRANTS the motion to set aside default against Defendant Abraham Estrada.   

 

DATED:  October 9, 2024 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court