Judge: Gregory Keosian, Case: 22STCV23998, Date: 2023-04-06 Tentative Ruling

Case Number: 22STCV23998    Hearing Date: April 6, 2023    Dept: 61

Defendant Paul Sheen Corporation’s Motion for Relief from Default is GRANTED. Plaintiff Solid Construction Company is awarded $2,700.00 in reasonable compensatory legal fees and costs.

Defendant to give notice.

I.                   MOTION TO VACATE DEFAULT

Defendants Paul Sheene Corporation and PSDBM, Inc. move for relief from default under Code of Civil Procedure § 473, subd. (b), specifically its provision for mandatory relief in the case of an attorney’s inadvertence, mistake, or neglect:

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 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. However, this section shall not lengthen the time within which an action shall be brought to trial pursuant to Section 583.310.

(Code Civ. Proc. § 473, subd. (b).)

Chad Biggins, counsel for Defendants, provides a declaration stating as follows. After Defendants retained him, he sought extensions from Plaintiff for time to respond to the complaint, and was granted extensions until October 25, 2022. (Biggins Decl. ¶ 5.) When Biggins asked for another extension on that date, there was no response; Biggins states that if Plaintiff’s counsel had told him no extension would be granted, and that a default would be entered, Defendants would have filed an answer and cross-complaint. (Biggins Decl. ¶ 5.) Plaintiff sought and entered Defendants’ default the next day. (Biggins Decl. ¶ 5.)

Plaintiff in opposition contends that Defendants had requested, and Plaintiff had granted, two prior extensions of time in which to respond, and that with the last extension Plaintiff had warned Defendant that no further extensions would be granted. (Opposition at p. 3.) Plaintiff also argues that under Code of Civil Procedure § 473, subd. (b), Defendants’ counsel must pay “reasonable compensatory legal fees and costs to opposing counsel or parties” incurred in relation to this motion. (Opposition at p. 6.)

Relief is appropriate under Code of Civil Procedure § 473, subd. (b). Plaintiffs and their counsel generally owe an ethical obligation “to warn before requesting entry of defendant’s default,” and “in the absence of a prior warning of default, courts are inclined to grant . . . motions to set aside defaults.” (Fasuyi v. Permatex, Inc. (2008) 167 Cal.App.4th 681, 701.) Plaintiff here warned only that no extensions would be granted; there was no warning that Plaintiff would seek a default the day after the deadline.

Plaintiff is entitled to reasonable legal fees and costs, however. Defendants bring this motion under the mandatory prong of Code of Civil Procedure § 473, subd. (b), based on an attorney’s affidavit of fault. “[W]henever 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.” (Code Civ. Proc., § 473, subd. (b).) Defendants’ argument in reply that fees under this statute are discretionary is unavailing, as the statute states that “[t]he court shall” ward such sanctions whenever relief is awarded under this prong.

The motion is GRANTED. Plaintiff is awarded $2,700.00 in reasonable compensatory legal fees and costs, representing six hours of attorney work at $450 per hour. (Park Decl. ¶ 12.)