Judge: Helen Zukin, Case: 22SMCV00644, Date: 2022-09-09 Tentative Ruling

Case Number: 22SMCV00644    Hearing Date: September 9, 2022    Dept: 207

Background

This action arises from a dispute between Plaintiff Brian Sheehy (“Plaintiff”) and Defendant Arthur Faro (“Defendant”) regarding the operation of a business started by the two of them, Faro Solutions, LLC. Plaintiff has filed a Complaint against Defendant for breach of fiduciary duty, intentional interference with prospective economic advantage, unjust enrichment, accounting, and declaratory relief. Defendant was served on June 3, 2022. When Defendant failed to make an appearance in this action, default was entered against him July 19, 2022. Defendant now moves to vacate the entry of default against him. Defendant’s motion is unopposed.

Standard to Set Aside Entry of Default

Defendant brings this motion to set aside the entry of default against him pursuant to Code Civ. Proc. § 473(b). An application for relief under section 473(b) 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. (Code Civ. Proc., § 473(b); English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 143.) In addition, an application for relief under this section “shall be accompanied by a copy of the answer or other pleading proposed to be filed herein, otherwise the application shall not be granted.” (Code Civ. Proc., § 473(b).) Relief under this section is mandatory when based on an attorney affidavit of fault; otherwise, it is discretionary. (Id.)

“ ‘ “The policy of the law is to have every litigated case tried upon its merits, and it looks with disfavor upon a party, who, regardless of the merits of the case, attempts to take advantage of the mistake, surprise, inadvertence, or neglect of his adversary.” ’ [Citations.] ‘Because the law favors disposing of the cases on their merits, “any doubts applying section 473 must be resolved in favor of the party seeking relief from default [citations]. Therefore, a trial court order denying relief is scrutinized more carefully than an order permitting trial on the merits.” ’ [Citations.]” ’ ” (Fayusi v. Permatex, Inc. (2008) 167 Cal.App.4th 681, 696.) Section 473 is a remedial statute that is to be broadly construed. (Id. at p. 1368.) In addition, it is well-settled that the law favors judgments on the merits and any doubts on a motion for relief from default must be resolved in favor of the moving party. (Laselle v. Vogel (2019) 36 Cal.App.5th 127, 134.)

Analysis

Defendant does not contest Plaintiff’s service of process. Rather, Defendant states his failure to timely respond to Plaintiff’s Complaint in this action was the result of an inadvertent error by his counsel. Counsel has submitted a declaration explaining his error. Counsel explains he was formally retained to represent Defendant in this action on July 24, 2022. Prior to this retention, Defendant sent the Complaint to counsel for review. Counsel reviewed the Complaint but did not review the proof of service showing Defendant had been properly served. Counsel had been under the mistaken impression that service was not properly effectuated by Plaintiff and thus there was no firm deadline for Defendant to respond. After his formal retention on July 24, counsel reviewed the proof of service and entry of default and realized his mistake.

As set forth above, the law favors the adjudication of cases upon their merits. Plaintiff does not oppose Defendant’s motion or otherwise claim prejudice from having Defendant’s default set aside. The Court also notes Defendant has attached his proposed answer to his motion as required. The Court finds Defendant’s explanation is sufficient to justify the relief sought under Code Civ. Proc. § 473(b) and Defendant’s motion to set aside the July 19, 2022, entry of default against him is GRANTED.

Conclusion

Defendant Arthur Faro’s motion to vacate and set aside entry of default is GRANTED.