Judge: Gary I. Micon, Case: 23CHCV01491, Date: 2024-05-02 Tentative Ruling

Case Number: 23CHCV01491    Hearing Date: May 2, 2024    Dept: F43

Dept. F43

Date: 5-2-24

Case #23CHCV01491, Ana I. Rodriguez vs. Zoraida Rodriguez, et al.

Trial Date: N/A

MOTION TO SET ASIDE DEFAULT

MOVING PARTY: Defendants Zoraida Rodriguez and Carlos Castro-Almeida

RESPONDING PARTY: Plaintiff Ana I. Rodriguez

RELIEF REQUESTED

Defendants are requesting that the Court enter an order setting aside the default entered against them.

RULING: Motion to set aside the default is granted.

SUMMARY OF ACTION

On May 22, 2023, Plaintiff Ana I. Rodrguez (Plaintiff) filed her complaint against Defendants Zoraida Rodriguez and Carlos Castro-Almedia (Defendants). Carlos was personally served with the complaint on June 28, 2023. Zoraida was personally served with the complaint on June 30, 2023. Defendants had 30 days to respond to the complaint.

On July 31, 2023, Jonathan Leavitt from the law firm Grant Shenon contacted Plaintiff’s counsel on behalf of Zoraida to see if Plaintiff would be willing to settle. The parties could not agree to a settlement, and Plaintiff’s counsel informed Leavitt that a response to the complaint was due immediately. Plaintiff’s counsel claims that Leavitt did not indicate that he was representing Carlos in any way.

On August 17, 2023, Plaintiff served both Defendants with a Request for Entry of Default. Default was entered by the Clerk on that same day. Plaintiff’s counsel represents that he also served the request for entry of default on Leavitt at his firm’s address.

On September 13, 2023, a different attorney from Grant Shenon, Nicholas Koo, contacted Plaintiff’s counsel and attempted to blame the entry of default on Plaintiff. Plaintiff’s counsel responded by email that same day and refused to set aside the default. There was a further email exchange between the two parties regarding whether the request for entry of default should have been served on Plaintiff directly, but because Leavitt had not entered an appearance on behalf of either Defendant, Plaintiff’s counsel argued that it was standard procedure to serve both Defendants and Leavitt.

After the email from Plaintiff’s counsel on September 13, 2023, that said that Plaintiff would not agree to set aside default, Koo did nothing until he filed this motion to set aside default on December 5, 2023.

In Defendants’ motion to set aside default, Koo claims that it was because of attorney mistake, surprise, or neglect that no response was filed to Plaintiff’s complaint. He represents that Leavitt was away from the office from mid-August until October due to personal matters. Koo also represents that he was out of the office from August 21, 2023, to September 2, 2023, on a trip, then out until September 11, 2023, because he had caught COVID-19. Koo also claims that he never received the request for entry of default that was purportedly served by mail on Defendants’ counsel (though the Court will note that Plaintiff indicated that the request for entry of default was served on Leavitt, not Koo). Plaintiff opposes Defendants’ motion.

ANALYSIS

CCP Section 473(b) states 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…Notwithstanding any other requirements of [§ 473(b)] 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…unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.¿The court shall, whenever relief is granted based on an attorney’s affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties.”

The law favors hearings on the merits, so any doubts as to the application of CCP § 473 should be resolved in favor of the party seeking relief from default. (See Shapiro v. Clark (2008) 164 Cal.App.4th 1128, 1139-1140.)

Koo, Defendants’ attorney, claims that the lack of response to the complaint was due to his mistake, inadvertence, or neglect. He also claims that because he and Leavitt were out of the office for extended periods of time, they neglected to file an answer on behalf of Defendants.

It appears that the blame for not filing a response lies with Defendants’ attorneys. The motion filed by Defendants’ attorneys is in the proper form and is accompanied by a proposed answer and a sworn declaration from Defendants’ attorney. Furthermore, any doubts as to the application of CCP § 473 should be resolved in favor of the party seeking relief from default. Therefore, the Court will grant relief from default pursuant to CCP § 473(b).

In Plaintiff’s opposition, Plaintiff requested a penalty of $1,000.00 for each Defendant whose default is set aside. Plaintiff argues that she has been prejudiced due to the attorney time that has been spent drafting a default package. CCP § 473(c)(1) states that “Whenever the court grants relief from a default…based on any of the provisions of this section, the court may do any of the following: (A) Impose a penalty of no greater than one thousand dollars ($1,000) upon an offending attorney or party.” The relief from default is not conditioned on this penalty being paid. (CCP § 473(c)(2).)

Though CCP § 473(c)(1)(A) states that the court will impose a penalty “of no greater than” $1,000 upon the offending attorney, Plaintiff seeks $1,000 for the defaults for both Defendants. The Court will impose a penalty of $1,000 against Koo for each Defendant, as there are two defendants and therefore two defaults.

Defendants’ motion to set aside default is granted. Defendants’ answer is deemed filed.

Defendants’ attorney is ordered to pay a total of $2,000.00 to Plaintiff’s counsel for the defaults for both Defendants.

Moving party to give notice.