Judge: Elaine W. Mandel, Case: 24SMCV02737, Date: 2024-10-15 Tentative Ruling

Case Number: 24SMCV02737    Hearing Date: October 15, 2024    Dept: P

Tentative Ruling

Venice Cardiff, LLC v. Gupta, Case no. 24SMCV02737

Hearing date October 15, 2024

Defendants’ Motion to Set Aside Default

Plaintiff sues defendants Praveen and Badri Gupta for breach of written lease. Badri Gupta was personally served on 8/1/24. Praveen Gupta was substitute served (on Badri Gupta) that same date. Default was entered against defendants on 9/10/2024 and 9/12/2024. Defendants answered on 9/16/2024. Defendants move to set aside the defaults.

Defendants’ counsel Sofris states the defaults were the result of his inadvertence and excusable neglect. Plaintiff does not contest setting aside the defaults but seeks $750 in fees. Defendants ask the court to deem the answer filed by defendant Badri Gupta on 9/16/2024 as timely.

Under Cal. Code of Civ. Proc. §473(b), the court may set aside a dismissal taken against a party through “mistake, inadvertence, surprise, or excusable neglect.” Relief under §473 should be liberally granted because public policy favors resolution of disputes on the merits, rather than through technical default. E.g., Fasuvi v. Permatex, Inc. (2008) 167 Cal.App.4th 681, 685.

Defendants failed to file a timely response due to an error in calendaring. Decl. Sofris paras. 6-8. Cal. Code of Civ. Proc. §473(b) states a party is entitled to relief when the default was entered due to attorney error, and a complying affidavit is filed. Metropolitan Service Corp. v. Casa de Palms, Ltd. (1995) 31 Cal.App.4th 1481, 1487.

Plaintiff does not contest set-aside of the defaults but seeks $750 in fees for preparation and filing of default papers and a CCP 585(b) packet, 2 hours at a billing rate of $375/hour. Decl. Robinson para. 2. Defendants argue that legal fees sought under Cal. Code of Civ. Proc. §473(b) must be those necessitated by obtaining the default.

Two hours for preparation and filing of the defaults is not unreasonable, so fees of $750 (2 x $375/hour) are ordered, payable within 30 days. The defaults are set aside. GRANTED. Defendants’ answer filed 9/16/2024 is deemed timely.