Judge: Katherine Chilton, Case: 22STLC06977, Date: 2023-05-03 Tentative Ruling
Case Number: 22STLC06977 Hearing Date: May 3, 2023 Dept: 25
PROCEEDINGS: MOTION TO VACATE DEFAULT
MOVING PARTY: Defendant Twelve 2 Forty 9 LLC
RESP. PARTY: Plaintiff Julissa Salguiero
MOTION TO VACATE DEFAULT
(CCP § 473(b)
TENTATIVE RULING:
Defendant Twelve 2 Forty 9 LLC’s Motion
to Vacate Default is GRANTED. Default
entered against Defendant on February 16, 2023, is hereby VACATED.
Defendant is ordered to file the
Proposed Answer within ten (10) days of notice of the Court Order.
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 April 20, 2023. [ ] Late [ ] None
REPLY: Filed on April
25, 2023. [ ]
Late [ ] None
ANALYSIS:
I.
Background
On October 19, 2022, Plaintiff Julissa
Salgueiro (“Plaintiff”) filed an action against Defendant Twelve 2 Forty 9 LLC
(“Defendant”) for breach of contract.
On February 16, 2023, based on Plaintiff’s
request, the Court entered default against Defendant. (2-16-23 Request for Entry of Default.)
On March 28, 2023, the Court denied
Defendant’s Ex Parte Application to Set Aside Entry of Default. (3-28-23 Minute Order.)
On April 6, 2023, Defendant filed the
instant Motion to Set Aside Entry of Default (“Motion”). Plaintiff filed an Opposition on April 20, 2023. Defendant filed a Reply on April 25, 2023.
II.
Legal Standard
Pursuant to Code
of Civil Procedure § 473(b), both discretionary and mandatory relief is
available to parties from “judgment, dismissal, order, or other proceeding
taken against him or her.” 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.)
Furthermore,
“[a]pplication
for this relief shall be accompanied by a copy of the answer or other pleading
proposed to be filed therein.” (Code of
Civil Procedure § 473(b).)
III.
Discussion
On February 16,
2023, pursuant to Plaintiff’s request, default was entered against Defendant. (2-16-23 Request for Entry of Default.)
Defendant now moves
to set aside the default entered against it pursuant to Code of Civil Procedure
§ 473(b) on
the ground that defense counsel “inadvertently failed to respond to the
complaint.” (Mot. p. 1.) Defendant has submitted a Proposed Answer
with the Motion. (Guidry Decl. ¶ 9 , Ex.
B.)
Defense counsel
explains she learned that default was entered against Defendant on or around
March 8, 2023. (Guidry Decl. ¶ 2.) She immediately contacted Plaintiff’s counsel
and requested a stipulation to set aside the default. (Ibid. at ¶ 3.) Plaintiff’s counsel asked for a settlement
offer prior to agreeing to a stipulation.
(Ibid.) Counsel Guidry
learned that the Complaint had been served on Counsel Mark Robbins on November
14, 2022, who failed to respond to due to “traumatic personal events.” (Ibid. at ¶ 6.) Defendant has been a client of Counsel’s firm
“since at least 2015” and “was justified in its reliance and belief that an
Answer was being handled.” (Ibid.
at ¶¶ 7-8.)
After the Court denied
Defendant’s Ex Parte Application to Set Aside Default, defense counsel again
contacted Plaintiff’s counsel to stipulate to setting aside the default;
however, Plaintiff’s counsel expressed “unwillingness to stipulate unless a
monetary offer was made.” (Ibid.
at ¶ 11, Ex. C.)
Defendant has also
filed the declaration of Mark Robbins, “partner with Epport, Richman &
Robbins, LLP, attorneys of record for Twelve 2 Forty 9 LLC” and the attorney
who received the Complaint. (Mot. p. 21.) Counsel Robbins explains that “traumatizing
tragic events” in his personal life “resulted in neglect on [his] part,
including the failure to timely file an answer in this matter.” (Robbins Decl. ¶ 6.) Defendant is not at fault for the failure to
respond to the Complaint. (Ibid.
at ¶ 7.)
Plaintiff opposes
Defendant’s Motion. Plaintiff’s counsel
states that he communicated with Counsel Robbins by email on January 4, 2023,
informing him that Plaintiff would request entry of default if no response was filed
within seven days. (Bloom Decl. ¶ 3, Ex.
A.) Counsel Robbins asked for a copy of
the Complaint on the same day and apologized for the delay. (Ibid. at ¶ 4, Ex. B.) Subsequently, Counsel Robbins sent an email
to “Wendy” asking her to handle the case and get an extension. (Ibid.at ¶ 5, Ex. C.) Plaintiff’s counsel did not receive any
additional communication and on January 27, 2023, informed defense counsel that
default had been entered against Defendant; although default was entered on February
16, 2023. (Ibid. at ¶ 7, Ex.
D.) On January 29, 2023, Counsel Robbins
reached out to set up a call; however, Plaintiff’s Counsel does not recall to
speaking to Counsel Robbins. (Ibid.
at ¶¶ 8-9.) He learned of Defendant’s Ex
Parte Application two months later. (Ibid.
at ¶ 9.) Defense counsel states that
Defendant and Robbins have “not acted in good faith concerning this matter” and
have “just ignored their obligation to repay plaintiff’s loan.” (Ibid. at ¶ 10.) Furthermore, default was entered due to the
negligence of the agent for service of process, not Defendant’s attorney, as,
Counsel Robbins was merely acting as the registered agent for service of
process prior to the entry of default. (Ibid.
at ¶ 11; Oppos. pp. 1-2.) Thus,
Defendant is not entitled to the relief requested. (Ibid.)
In
its Reply, Defendant reiterates that mandatory relief from default is available
when the motion to set aside default is accompanied by the attorney’s affidavit
of fault. (Reply p. 2.) Here, defense counsel has filed a declaration
attesting to “his mistake and neglect in failing to timely respond to the
complaint.” (Ibid.) Plaintiff makes a false argument that Counsel
Robbins is not Defendant’s attorney as Counsel Robbins clearly states that he
served both as Defendant’s attorney and agent for service of process, which is
not an uncommon practice. (Ibid.;
Robbins Decl. ¶ 1.) The email exchanges
submitted by Plaintiff further demonstrate that Counsel Robbins was
representing Defendant as he clearly stated to Plaintiff’s counsel that
Defendant is his client. (Reply p. 2;
Oppos. – Bloom Decl. ¶ 7, Ex. D.) As
Counsel Robbins explained in his declaration, “Defendant had no involvement in
the delay and neglect” and the “[t]ragic events [in Counsel Robbins’s life]
resulted in Counsel’s [excusable] neglect.”
(Reply p. 3.)
The Court finds
that Defendant’s Motion is timely as it was filed less than six (6) months after
entry of default. The Court also finds that default was
entered due to Counsel’s inadvertence and excusable neglect. There is sufficient evidence to deduce that
Counsel Robbins, who attests to failing to handle the responsive pleading,
represented Defendant at the time of default.
For this reason,
the Court GRANTS Defendant’s Motion.
IV.
Conclusion
& Order
For the foregoing reasons,
Defendant Twelve 2 Forty 9 LLC’s
Motion to Vacate Default is GRANTED.
Default entered against Defendant on February 16, 2023, is hereby
VACATED.
Defendant is ordered to file the
Proposed Answer within ten (10) days of notice of the Court Order.
Moving party is to give notice.