Judge: Edward B. Moreton, Jr, Case: 24SMCV00902, Date: 2024-10-25 Tentative Ruling

Case Number: 24SMCV00902    Hearing Date: October 25, 2024    Dept: 205

Superior Court of California

County of Los Angeles – West District

Beverly Hills Courthouse / Department 205

BACKGROUND

This is a construction defect case.  Plaintiff Lyuda Ksenych entered into a contract with Defendants Vahid Zand, Niyousha Eternadieh and Calcons, Inc. to perform construction work at her home.  Plaintiff alleges Defendants breached the contract by failing to complete the work on time.  The work was to be completed in two months, but Defendants took nearly 16 months.  Plaintiff also alleges Defendants damaged flooring, expensive stone, and cabinets during the installation process.  On these facts, the operative complaint alleges two claims for breach of contract and negligence. 

Plaintiff served the Complaint on Defendant Enternadieh by personal service on March 17, 2024 and on Defendant Zand by substitute service on March 17, 2024.  Defendants did not respond.  Default was entered on August 23, 2024. 

This hearing is on Defendants Zand and Eternadieh’s (“Moving Defendants’”) motions to set aside default.  Moving Defendants argue they did not file a response because they had an understanding with Plaintiff’s former counsel that they would be dismissed from the Complaint.    

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.4^th 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

Moving Defendants’ motions to set aside default is timely.  Default was entered on August 23, 2024, and Moving Defendants filed their motions on September 11, 2024, within six months of the entry of default. 

However, Moving Defendants have not satisfied the requirement of attaching a copy of the proposed responsive pleading with their motions to set aside.  (Code Civ. Proc., §473.5(b).)  Their motions indicate that the proposed responsive pleading is attached as Exhibit A.  (Motion at 2:5-8.)  However, Exhibit A is a meet and confer letter, not a proposed response.  Accordingly, the Court denies the motions without prejudice to Moving Defendants renewing their motions with the proper submissions. 

CONCLUSION

For the foregoing reasons, the Court DENIES the motions to set aside default. 

DATED:  October 25, 2024                                  ___________________________

Edward B. Moreton, Jr.

Judge of the Superior Court