Judge Katherine Chilton, Case 22STLC04415 2022-12-12 Tentative Ruling

Judge: Katherine Chilton, Case: 22STLC04415, Date: 2022-12-12 Tentative Ruling

Case Number: 22STLC04415 Hearing Date: December 12, 2022 Dept: 25

PROCEEDINGS: MOTION TO SET ASIDE/VACATE DEFAULT AND DEFAULT JUDGMENT

MOVING PARTY: Defendant Jaurigue Law Group

RESP. PARTY: Plaintiff Creditors Adjustment Bureau

MOTION TO SET ASIDE/VACATE DEFAULT AND DEFAULT JUDGMENT

(CCP § 473(b))

TENTATIVE RULING:

Defendant Jaurigue Law Group’s Motion to Set Aside/Vacate Default and Default Judgment is GRANTED. The Court vacates default, entered on September 8, 2022, and default judgment, entered on October 11, 2022.

Furthermore, Plaintiff’s request for attorney’s fees in the amount of $1,310.00, to be paid by defense counsel, is GRANTED.

SERVICE:

[ ] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[ ] Correct Address (CCP §§ 1013, 1013a) OK

[ ] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

OPPOSITION: Filed on October 27, 2022. [ ] Late [ ] None

REPLY: Filed on November 2, 2022. [ ] Late [ ] None

ANALYSIS:

I. Background

On July 1, 2022, Plaintiff Creditors Adjustment Bureau (“Plaintiff”) filed a complaint against Defendant Jaurigue Law Group, a Professional Corporation, aka Jaurigue Law Group a Professional Corporation aka JLG Lawyers, for breach of contract, open book account, account stated, and reasonable value.

No responsive pleadings were filed, so on September 8, 2022, default was entered against Defendant. (9-8-22 Request for Entry of Default/Judgment.) Subsequently, on October 11, 2022, Judgment was entered for Plaintiff and against Defendant for $11,266.28. (10-11-22 Judgment.)

On October 14, 2022, Defendant filed the instant Motion to Set Aside/Vacate Default and Default Judgment (“Motion”). On October 27, 2022, Plaintiff filed an Opposition to the Motion (“Opposition”). On November 2, 2022, Defendant filed a Reply to the Opposition (“Reply”) and a Supplemental Declaration of Michael J. Jaurigue.

On November 9, 2022, the Court continued the hearing on the Motion because it appeared that no responsive pleadings had been filed with the Motion. (11-9-22 Minute Order.)

On November 15, 2022, Defendant filed an Answer to the Complaint and proof of personally serving the Answer on the Plaintiff.

II. Legal Standard

Pursuant to Code of Civil Procedure §473(b), both discretionary and mandatory relief is available to parties from a judgment, dismissal, order, or other proceeding. Discretionary relief is available under the statute as “the court may, upon any terms as may be just, relieve a party or his or her legal representative from judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. (Code of Civ. Proc. § 473(b).) Alternatively, mandatory relief is available when “accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect.” (Ibid.) Under this statute, an application for discretionary or mandatory relief must be made no more than six months after entry of the judgment, dismissal, order, or other proceeding from which relief is sought. (Code Civ. Proc., § 473(b); English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 143.)

“‘[W]hen relief under section 473¿is¿available, there is a strong¿public¿policy¿in¿favor¿of granting relief and allowing the requesting party his or her day in court…[Citation.]” (Rappleyea v. Campbell¿(1994) 8 Cal. 4th 975, 981-82.)

III. Discussion

A. Motion to Set Aside/Vacate Default and Default Judgment

Defendant seeks to set aside default and default judgment based on “inadvertence, surprise, mistake, or excusable neglect” pursuant to Code of Civil Procedure § 473(b). (Mot. p. 1.) Defendant submits the declaration of Michael J. Jaurigue, President and principal attorney at Jaurigue Law Group and counsel of record for Defendant, in support of the Motion. Counsel states that the deadline to file responsive pleadings “was inadvertently not properly calendared due to staffing changes, including the hiring of a new docket and calendar clerk” and for this reason, Defendant missed the deadline to respond to the Complaint. (Jaurigue Decl. ¶ 4.)

Plaintiff opposes Defendant’s Motion on the grounds that “1) Defendant has made an insufficient showing of its entitlement to relief; and 2) Defendant failed to include a copy of the answer or other pleading proposed to be filed, which his fatal to the Motion.” (Oppos. p. 1.) Plaintiff states that “defendant has identified only one category – inadvertence – under which it seeks discretionary relief” and has not established that it is entitled to relief. (Ibid. at p. 3.) Defendant’s explanation for failure to respond to the Complaint is vague and does not explain how the staffing change caused the missed deadline. (Ibid. at p. 4.) Plaintiff argues that Defendant could have also reached out to Plaintiff after default was entered. (Ibid.) Thus, “Defendant here has failed to establish any ultimate facts that would demonstrate inadvertence.” (Ibid.)

Plaintiff also argues that Code of Civil Procedure § 473(b) requires a copy of responsive pleadings to be included with the application for relief, otherwise, the application will be denied. (Ibid.) Defendant has failed to attach a copy of any responsive pleadings. (Ibid.)

On November 2, 2022, Defendant filed a Reply with a copy of the Answer and Supplemental Declaration of Michael J. Jaurigue. The Court had not received these documents prior to the previous scheduled hearing and, thus, did not discuss the Reply and Declaration in the previous Minute Order. In his Supplemental Declaration, Counsel provides additional details regarding the calendaring mistake that caused his failure to submit a responsive pleading. He states that Defendant hired a new docket and calendaring clerk who began to work on August 1, 2022, 6 days after service of the Complaint in the instant case. (Jaurigue Supp. Decl. ¶ 3.) The new clerk’s training was not completed until early September 2022. (Ibid. at ¶ 4.) As a result, the Complaint was not properly processed and the deadline for filing and serving responsive pleadings was not properly calendared. (Ibid. at ¶ 5.)

On November 9, 2022, the Court noted that Defendant’s Motion is timely. (11-9-22 Minute Order.) Furthermore, Defendant’s Counsel of record has submitted a declaration attesting to his and his staff’s mistake in properly calendaring the deadline for responsive pleadings. (Ibid.) Counsel has also submitted a Supplemental Declaration with additional details regarding the calendaring mistake. Pursuant to Code of Civil Procedure § 473(b), relief from dismissal or default is mandatory when the application for relief is “accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect.” On November 9, 2022, the Court had not received the responsive pleadings and, thus, continued the hearing on the Motion. (11-9-22 Minute Order.) The Court is now in receipt of Defendant’s Answer.

For this reason, the Motion to Set Aside/Vacate Default and Default Judgment is GRANTED. The Court vacates default, entered on September 8, 2022, and default judgment, entered on October 11, 2022.

B. Attorney’s Fees

In the case that the Court grants Defendant’s Motion, Plaintiff requests attorney’s fees in the amount of $1,310.00 for seeking default and default judgment and responding to the instant Motion. (Oppos. p. 5.) Counsel calculates attorney’s fees as follows: 1.2 hours spent by Counsel Joseph Jyoo reviewing the file and preparing the request for default, 1.10 hours spent by Counsel Anderson reviewing and analyzing the instant Motion and drafting an opposition, and 0.8 hours spent by Counsel Anderson reviewing the reply and appearing at the hearing. (Ibid. at ¶¶ 3-5.) Counsel Jyoo’s billing rate is $300.00 per hour and Counsel Anderson’s billing rate is $500.00 per hour. (Ibid.)

According to Code of Civil Procedure § 473(b), “[t]he 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.”

Here, the Court grants Defendant’s Motion to Set Aside/Vacate Default and Default Judgment based on Counsel’s affidavit of fault. Thus, Plaintiff is entitled to reasonable attorney’s fees and costs. The Court finds that Plaintiff’s request for attorney’s fees in the amount of $1,310.00, expended in pursuit of default judgment and in responding to the instant Motion, is reasonable.

For this reason, Plaintiff’s request for attorney’s fees in the amount of $1,310.00 is GRANTED.

IV. Conclusion & Order

For the foregoing reasons,

Furthermore, Plaintiff’s request for attorney’s fees in the amount of $1,310.00, to be paid by defense counsel, is GRANTED.

Moving party is to give notice.