Judge: Frank M. Tavelman, Case: 22BBCV01209, Date: 2025-03-07 Tentative Ruling

REQUESTING ORAL ARGUMENT PER CRC 3.1308

The Court will attempt to post all Tentative Rulings at least the day prior to the hearing by 3:00 p.m.; however, the Court does not post Tentative Rulings for all matters.  

The Court will indicate in the Tentative Ruling whether the Court is requesting oral argument.  For cases where the Court is not requesting argument, then the Court is guided by California Rules of Court, Rule 3.1308(a)(1) where the Court requests notice of intent to appear.  Unless the Court directs argument in the Tentative Ruling, a party seeking argument should notify all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear and argue.  The tentative ruling will become the ruling of the court if no argument is received.   

Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412.

Notice of the ruling must be served as indicated in the tentative.  Remote appearances are permitted for all law and motion unless otherwise indicated by the Court.  

Case Number: 22BBCV01209    Hearing Date: March 7, 2025    Dept: A

MOTION TO SET ASIDE DEFAULT

NOTICE:

The Court is not requesting oral argument on this matter.  The Court is guided by California Rules of Court, Rule 3.1308(a)(1) whereby notice of intent to appear is requested.  Unless the Court directs argument in the Tentative Ruling, no argument is required and any party seeking argument should notify all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear and argue.  The tentative ruling will become the ruling of the court if no argument is received.  

Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412.

ALLEGATIONS: 

Mehrin May (Plaintiff) brings this action against Soheil Kashani, Cassandra Yekani, and Laurel Canyon Collection, Inc. (Laurel Canyon) (collectively Defendants). Laurel Canyon serves as the Home Owner’s Association (HOA) for properties owned by Plaintiff, Kashani, and Yekani. Plaintiff alleges Laurel Canyon failed to soundproof the floors in various units. Plaintiff alleges that this has resulted in significant noise from adjacent properties in violation of her quiet enjoyment.

Before the Court is Laurel Canyon’s motion to set aside the default entered against it by Plaintiff. This is the second such default sought by Plaintiff, the first having been set aside by Court order on December 15, 2023. Laurel Canyon thereafter demurred to the Complaint, which the Court sustained with leave to amend. After Plaintiff filed her FAC, Laurel Canyon failed to file a responsive pleading by the deadline and Plaintiff sought to enter default once more.

Laurel Canyon argues the default should be set aside as they received no notice that Plaintiff’s counsel was moving to enter default. Plaintiff opposes and Defendant replies.

ANALYSIS: 

I.                    LEGAL STANDARD 

C.C.P. § 473(b) has both a discretionary relief provision and a mandatory relief provision. (Jackson v. Kaiser Foundation Hospitals, Inc. (2019) 32 Cal.App.5th 166, 173.)  The discretionary provision of Code of Civil Procedure § 473(b), in pertinent part, reads as follows:

The court may, upon any 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…

The mandatory provision of C.C.P. § 473(b) reads, in pertinent part, as follows:

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 general underlying purpose of C.C.P. § 473(b) is to promote the determination of actions on their merits. (Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830.) Under this statute, an application for relief must be made no more than six months after entry of the judgment, dismissal, order, or other proceeding from which relief is sought and must be accompanied by an affidavit of fault attesting to the mistake, inadvertence, surprise or neglect of the moving party or its attorney. (C.C.P. § 473(b); English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 143.)

II.                 MERITS

Procedural Background

On April 26, 2024, the Court sustained Laurel Canyon’s demurrer to the entire Complaint with 20 days’ leave to amend.

On May 15, 2024, Plaintiff filed her First Amended Complaint (FAC). The final page of Plaintiff’s FAC is a proof of service, showing service via email upon Laurel Canyon, and other Defendants, on the same day as the FAC was filed. (FAC p. 123.)

On August 26, 2024, the case came on for a Case Management Conference.

On September 10, 2024, counsel for Laurel Canyon sent counsel for Plaintiff a letter attempting to meet and confer with respect to the FAC. (Ryu Decl. Exh. 11.) Neither party states whether this letter received any response.

On September 13, 16, and 17, 2024, Plaintiff requested default be entered against Laurel Canyon three times. Plaintiff’s September 17 request was granted, and default was entered.

Discussion

Relief under the mandatory provision of C.C.P. § 473(b) requires that the attorney for the moving party file a sworn affidavit attesting to their mistake, inadvertence, surprise, or neglect. When relief is sought on the basis of attorney mistake or neglect, mandatory relief does not require that mistake or neglect to be “excusable”. (Martin Potts & Associates, Inc. v. Corsair, LLC (2016) 244 Cal.App.4th 432, 438.) Nor does mandatory relief require that the attorney provide an explanation for the reasons behind their mistake or neglect where the fault is undisputably on the attorney. (Id.) While an explanation may be useful in determining the application of mandatory relief, the granting of mandatory relief cannot be contingent upon an attorney’s reason or lack thereof except where it is unclear whether the attorney or client is at fault. (Id. at 442.)

While an attorney need not provide reasons for their mistake or neglect, “…it is not enough for the attorney to attest ‘My client is entitled to relief under section 473, subdivision (b)’ as that would be an impermissible conclusion of ultimate fact. (Id.) In essence, the attorney affidavit cannot be conclusory and must include at least enough facts for the Court to determine that the attorney, not the client, was at fault. (Id. at 437.)

Here, Laurel Canyon’s statutory deadline to respond to the FAC via responsive pleading was June 14, 2024. (See C.C.P. § 471.5(a).) No demurrer or answer was filed by Laurel Canyon prior to that date or thereafter. In moving for mandatory relief from this default, Laurel Canyon is required to submit the sworn affidavit of its counsel attesting to mistake, inadvertence, surprise, or neglect. Counsel for Laurel Canyon need not justify why any of these conditions occurred, but they must at least provide sufficient facts for the Court to determine they were solely to blame for the failure to timely file a responsive pleading. For reasons set forth below, the Court finds the declaration of Laurel Canyon’s counsel does not attest to such facts.

Counsel for Laurel Canyon, Jennifer Ryu (Ryu), submits the affidavit in support of mandatory relief. Ryu states that on May 15, 2024, after the demurrer was sustained with leave to amend, Plaintiff filed her FAC. (Ryu Decl. ¶ 8.) Ryu next states, “At the Case Management Conference on August 26, 2024, the Court indicated that Defendant had not been served with Plaintiff’s First Amended Complaint.” (Id.) This statement does not comport with the Court’s recollection and notes of the Case Management Conference.

The Court recalls, and its notes confirm, that it inquired about service upon Laurel Canyon because Plaintiff had mistakenly failed to separately file her Proof of Service for the FAC. When the Court raised this issue, counsel for Laurel Canyon confirmed they had accepted service via email and would file a responsive pleading. Later that day, Plaintiff filed her separate proof of service, which appears identical to the one attached to her FAC. (See FAC at p. 132.)

Ryu does not deny having received service in her declaration, and in fact makes no mention of service at all. Ryu also make no mention of Laurel canyon’s deadline to file a responsive pleading. The only facts in Ryu’s declaration speaking to the default are an erroneous statement regarding service followed by statements that her office sent a meet and confer letter well after the deadline to respond had passed.  

In essence Ryu has not attested to any facts as to any mistake or neglect attributable to her office. The Court cannot parse from this declaration what the mistake or neglect was and to who it is attributable. While the bar for mandatory relief under C.C.P. § 473(b) is low, its requirements are not nonexistent. Laurel Canyon counsel need not provide a reasons for their mistake/neglect, but they must at the very least acknowledge that one occurred. A declaration which completely ignores the failure to timely file a responsive pleading, especially when the Court addressed the issue at a Case Management Conference, is not a legal basis for mandatory relief.

As a last matter, the Court finds Laurel Canyon’s argument that Plaintiff’s counsel owed a professional courtesy to warn prior to seeking default, while true, is inapplicable to this situation.   Laurel Canyon should not have been surprised by the default given the Court raising the responsive pleading issue during the Case Management Conference and counsel’s affirmative statement that a responsive pleading would be filed.

In Fasuyi v. Permatex, Inc. (2008) 167 Cal.App.4th 681, the California Court of Appeal reversed a trial court order denying relief from default. The court relied, in part, upon the ethical obligation of the plaintiff’s counsel to inform defendant’s legal department of an attempt to enter default, in light of the fact that the plaintiff’s counsel had been in contact with them prior. (Id. at 701.) The court found that while this obligation was not legal, it played an appropriate role in the determining whether defendant’s mistake was excusable. (Id.) When combined with the fact that the defendant genuinely believed the matter was being responded to by their insurer, the court found the ethical violation persuasive to grant discretionary relief. (Id. at 694.) Still, the court cautioned, “Nor do we hold that a plaintiff's attorney must warn a defendant's attorney before taking a default. We recognize that each situation is sui generis and must be analyzed accordingly.” (Id. at 703.)

In the wake of Fasuyi, courts have begun to incorporate this ethical obligation into their rulings more readily. (See Lasalle v. Vogel (2019) 36 Cal.App.5th 127, 135.) Regardless, the Court finds consideration of any ethical violation in this case does not weigh toward the granting of Laurel Canyon’s motion. Fasuyi concerned discretionary relief and whether the defendant’s mistake was excusable. Given that Laurel Canyon has moved for mandatory relief, which does not require the Court consider the merits of excuse, it is unclear that Fasuyi applies. Even assuming Fasuyi did apply to mandatory relief, the circumstances here indicate that the failure of plaintiff’s counsel to notify prior to default has no bearing on Laurel Canyon’s failure to timely respond.

Accordingly, the motion to set aside default is DENIED without prejudice.

Sanctions

Plaintiff requests that sanctions be granted pursuant to C.C.P. § 128.5(a) which provides in pertinent part:

A trial court may order a party, the party's attorney, or both, to pay the reasonable expenses, including attorney's fees, incurred by another party as a result of actions or tactics, made in bad faith, that are frivolous or solely intended to cause unnecessary delay.

The Court declines to exercise its discretion in this regard. While the Court does not find Laurel canyon’s declaration sufficient, there is no evidence that they failed to respond to the FAC with a bad faith intent to cause delay.

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records. 

ORDER 

Laurel Canyon Collection, Inc.’s Motion to Set Aside Default came on regularly for hearing on March 7, 2025, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows: 

THE MOTION TO VACATE DEFAULT IS DENIED WITHOUT PREJUDICE.

THE COURT ALSO SETS A CASE MANAGEMENT CONFERENCE FOR MAY 6, 2025 AT 9:00 AM.

PLAINTIFF TO PROVIDE NOTICE.

IT IS SO ORDERED.