Judge: George F. Bird, Jr., Case: 22CMCV00473, Date: 2023-02-02 Tentative Ruling

Case Number: 22CMCV00473    Hearing Date: February 2, 2023    Dept: B

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES – SOUTH CENTRAL DISTRICT

I.       BACKGROUND  

            Plaintiffs Pablo Sahagun and Yvette E. Rios (“Plaintiffs”) filed the Complaint on November 11, 2022, against Defendants Castashau R. Tyson, individually and as trustee of The Atario James Living Trust, Atario James, as trustee of The Atario James Living Trust, and Mardarious Tyson, as an individual (collectively “All Defendants”), alleging All Defendants breached their obligation to close escrow for the purchase of a property located at 15000 Downey Ave, #218, Paramount, CA 90723 (the “Property”). (Complaint (“Compl.”), ¶¶ 6, 21, 24.) Plaintiffs served Defendants Castashau R. Tyson and Atario James by substituted service to their home and by first class mail on November 14, 2022. (See Proof of Substituted Service filed November 14, 2022.)  Default was entered against Defendants Castashau R. Tyson and Atario James on December 28, 2022.

II.       MOTION TO VACATE DEFAULT

A.    Motion to Vacate Default filed on January 9, 2023.

             Defendants Castashau R. Tyson and Atario James (“Defendants”) bring this Motion to Vacate Default pursuant to Code of Civil Procedure section 473, subdivision (b). Defendants argue that they retained GREENACRE LAW, LLP to represent Defendants in this matter and counsel inadvertently failed to file a demurrer by the response deadline. (Motion to Vacate Default, p. 3:15-20.) Defendants submit a declaration from Josué Cristóbal Guerrero, Esq., managing partner at GREENACRE LAW, LLP, who declares he spoke to opposing counsel on December 5, 2022, regarding the demurrer that Josué Cristóbal Guerrero, Esq. planned to file in this matter, but due to attorney error the demurrer was not timely filed. (Decl. of Josué Cristóbal Guerrero, ¶¶ 7, 8.)

B.     Opposition filed January 23, 2023.

            Plaintiffs do not object to vacating the default judgment entered and Amanda J. Potier, counsel for Plaintiffs, declares that Plaintiffs signed a stipulation to set aside the default in exchange for Defendants paying the costs of obtaining the default, $250.00. (Decl. of Amanda J. Potier, ¶¶ 11, 14, 15, 16, 17.) Amanda J. Potier also alleges that the representation by Josué Cristóbal Guerrero that a demurrer was discussed on December 5, 2022 is false. (Decl. of Amanda J. Potier, ¶¶ 9, 10.) 

III.       LEGAL STANDARDS

            “(b) 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….” (Code Civ. Proc., § 473, subd. (b).)

            “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.” (Code Civ. Proc., § 473, subd. (b).)

            “While section 473 is remedial and should be liberally construed, nevertheless the moving party has the burden of showing that the default was entered through ‘mistake, inadvertence, surprise or excusable neglect’ (s 473), which he must establish by a preponderance of the evidence (Luz v. Lopes, 55 Cal.2d 54, 61—62, 10 Cal.Rptr. 161, 358 P.2d 289); in the absence of such showing the default may not be set aside. (Yarbrough v. Yarbrough, 144 Cal.App.2d 610, 614—615, 301 P.2d 426; Gudarov v. Hadjieff, 38 Cal.2d 412, 418, 240 P.2d 621; Beard v. Beard, 16 Cal.2d 645, 647, 107 P.2d 385.).” (Goodson v. Bogerts, Inc. (1967) 252 Cal.App.2d 32, 38 [60 Cal.Rptr. 146, 150].)

            “(c)(1) Whenever the court grants relief from a default, default judgment, or dismissal 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.

(B) Direct that an offending attorney pay an amount no greater than one thousand dollars ($1,000) to the State Bar Client Security Fund. (C) Grant other relief as is appropriate.” (Code Civ. Proc., § 473, subd. (c).)

IV.       DISCUSSION

A.    Motion to Vacate Default

            Defendants have complied with the procedural requirements of a motion to vacate default by bringing this motion within six months of default being entered and by providing a copy of the demurrer Defendants would have filed in response. Because Defendants have complied with the procedural requirements and submitted a declaration from their attorney attesting to the mistake, the Court is required to vacate the default unless the Court determines the error was not truly due to the attorney’s mistake. (Code Civ. Proc., § 473, subd. (b).) Because Plaintiffs are not objecting to vacating the default and has allegedly already signed a stipulation to set aside default, the Court will grant this Motion to Vacate Default finding that the failure to appear was due to Defendants’ attorney’s mistake.

            This Motion to Vacate Default is GRANTED.

B.     Sanctions

            Under Code of Civil Procedure section 473, subdivision (c), the court may grant sanctions, not to exceed $1,000, to the party who sought default. (Code Civ. Proc., § 473, subd. (c).) Here, Plaintiffs’ have incurred costs and attorney’s fees due to Defendants’ counsel’s failure to file the demurrer, resulting in a default against Defendants which is now vacated, and Defendants’ counsel’s failure to proceed with the alleged stipulation to set aside default, resulting in Plaintiffs’ counsel filing an opposition to this Motion to Vacate Default. Plaintiffs’ counsel states the costs and attorney’s fees incurred due to Defendants’ counsel’s mistakes total $1,110.00. Under Code of Civil Procedure section 473, subdivision (c), the court may grant sanctions not to exceed $1,000.00. The Court GRANTS sanctions in the amount of $1,000.00.

V.       CONCLUSION

             The Court GRANTS the Motion to Vacate Default. The Court award sanctions in the amount of $1,000 against Defendants’ counsel only, payable to Plaintiffs within 10 days.

Dated: February 2, 2023                                             __________________________________

                                                                                                Judge of the Superior Court