Judge Kerry Bensinger, Case Number: 23STCV11238, Date: 2024-02-29 Tentative Ruling

On May 18, 2023, Plaintiff, Barry Maiten, filed this breach of a contract action against Defendants, Anat Ebgi (“Ebgi”) and Joshua Michael Rosenblatt (“Rosenblatt”), alleging Defendants ceased making monthly rent payments on April 1, 2020 pursuant to a lease agreement between the parties. Defendants vacated the property on or about July 31, 2021.

On June 30, 2023, Plaintiff served Defendants with the summons and complaint by personal service.

On July 21, 2023, defense counsel Alexander Merino requested an extension of time to respond to the Complaint. Mr. Merino agreed to accept service on behalf of Rosenblatt and subsequently signed a Notice and Acknowledgement of Receipt of the summons and complaint on August 9, 2023. As such, Defendants’ response to the Complaint was extended to September 15, 2023.

On September 15, 2023, Plaintiff filed a request for entry of default. On the same day, Mr. Merino filed a Declaration of Demurring or Moving Party in Support of Automatic Extension (“Declaration of Demurring Party”) on behalf of Ebgi and Rosenblatt. For this reason, Plaintiff’s request for entry of default was rejected. Defendants’ response was therefore due on October 16, 2023.

Defendants did not file a responsive pleading on October 16, 2023. On October 17, 2023, pursuant to Plaintiff’s request, default was entered against Defendants.

On October 18, 2023, Defendants filed an Answer to the Complaint. The Answer was not rejected by the court.

On October 19, 2023, Mr. Merino contacted Plaintiff’s counsel to request that the default be set aside. Plaintiff did not agree. As such, on January 16, 2024, Defendants filed this motion to set aside the default.

Plaintiff filed an opposition. Plaintiff requests imposition of sanctions against Defendants if the court is inclined to set aside the default.

Code of Civil Procedure section 473, subdivision (b) provides that a court may “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.” In addition, a court must vacate a default or dismissal when a motion for relief under Section 473, subdivision (b) is filed timely and accompanied by an attorney’s sworn affidavit attesting to the attorney’s mistake, inadvertence, surprise or neglect “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).)

The party or the legal representative must seek such relief “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); see Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980 [“because more than six months had elapsed from the entry of default, and hence relief under section 473 was unavailable”]; People v. The North River Ins. Co. (2011) 200 Cal.App.4th 712, 721 [motion for relief under section 473 must be brought “within a reasonable time, in no case exceeding six months”].)

Defendants move to vacate the default. Defendants offer the declaration of Mr. Merino who states he was traveling in Asia and unexpectedly did not have internet access on October 16, 2023. Mr. Merino was able to submit Defendants’ Answer for filing on October 17, 2023, however, due to the time difference, the Answer was filed on October 18, 2023. (Merino Decl., ¶ 2.) For these reasons, Defendants argue the failure to timely answer the Complaint was the result of counsel’s mistake, inadvertence, surprise, and excusable neglect. Defendants further contend the taking of the default was improper as Defendants are represented by counsel and had been in communication regarding discovery (see Merino Decl., ¶ 3) and the merits of the case (see Reply, Merino Decl., ¶¶ 2-5). Defendants cite Lasalle v. Vogel (2019) 36 Cal.App.5th 127, 137 for the proposition that counsel has an ethical obligation to warn opposing counsel of intent to take a default.

In opposition, Plaintiff makes much of Defendants having had a total of 105 days to respond to the Complaint. However, Plaintiff’s opposition shies away from the principal issues raised by this motion: whether Defendants timely sought relief, whether Plaintiff suffered prejudice, and whether Plaintiff’s counsel violated his obligation not to take the default. Here, it is undisputed Defendants timely sought relief. The party or the legal representative must seek such relief “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).) Default was entered on October 17, 2023 and this motion followed less than three months later on January 16, 2024. As to prejudice, Plaintiff does not raise a single argument showing any prejudice would result from setting aside the default.

Plaintiff does not adequately address Lasalle. Plaintiff again focuses on the length of time (105 days) which has passed since service of process and points to having previously requested entry of default against Defendants on September 15, 2023. Plaintiff also cites California Rules of Court (CRC), rule 3.110(g) for the proposition that Plaintiff has an obligation to speedily seek default. Plaintiff’s arguments are unavailing.

First, Defendants were automatically granted a 30-day extension simply by filing the Declaration of Demurring Party.[1] (See Code Civ. Proc., § 430.41, subd. (a)(2).) Further, the preceding extensions of time to respond were agreed upon by the parties.[2]

Second, Plaintiff filed the first Request for Entry of Default on September 15, 2023—on the very day Defendants’ responsive pleading was due. No evidence has been presented showing defense counsel was notified prior to the filing of the September 15, 2023 Request.

Third, although CRC rule 3.110(g)[3] does direct timely requests for entry of default on pain of possible sanctions, the weight of authority clearly states “[t]he law favors judgments based on the merits, not procedural missteps.” (Lasalle, supra, 36 Cal.App.5th at p. 134.) “[A]ny doubts in applying section 473 must be resolved in favor of the party seeking relief from default [citations].” (Rappleyea, supra, 8 Cal.4th at p. 980.) So too here.

Based on the foregoing, the court finds Defendants merit mandatory rather than discretionary relief under section 473. A court must vacate a default or dismissal when a motion for relief under Section 473, subdivision (b) is filed timely and accompanied by an attorney’s sworn affidavit attesting to the attorney’s mistake, inadvertence, surprise or neglect. (Code Civ. Proc., § 473, subd. (b).) Here, Defendants timely filed for 473 relief and have established by way of defense counsel’s declaration that the default was taken due to defense counsel’s inadvertence, mistake, or excusable neglect. Further, Plaintiff does not demonstrate prejudice will result from setting aside the default.

Section 473 delineates two forms of sanctions: mandatory and discretionary. Under CCP section 473, subdivision (b), “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.”

CCP section 473, subdivision (c)(1) sets forth the court’s authority to impose discretionary sanctions. “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.

Plaintiff requests sanctions in the sum of $11,930.66[4]. Given that the court has granted mandatory relief based on defense counsel’s declaration, sanctions are likewise mandatory. Curiously, both parties agree that Defendants have not submitted an affidavit of fault from defense counsel. However, despite the parties’ respective positions, Mr. Merino’s declaration can only be construed as an affidavit of fault. Mr. Merino was aware of the deadline to file a responsive pleading. Accordingly, he was responsible for ensuring that the responsive pleading was timely filed. Mr. Merino cannot avoid that responsibility simply because he was on a trip in Asia without access to internet. The situation was of Mr. Merino’s own making.

Based on the foregoing, the court imposes sanctions against defense counsel in the sum of $1,200 to be paid to Plaintiff’s counsel. The court declines to impose any further sanctions.

The motion is GRANTED. The default entered against Defendants Anat Ebgi and Joshua Michael Rosenblatt on October 17, 2023 is VACATED. Defendants’ Answer is deemed filed on October 18, 2023.

The court imposes sanctions against defense counsel in the sum of $1,200 to be paid to Plaintiff’s counsel within 30 days of this order.

[1] Plaintiff contends Mr. Merino did not attempt to meet and confer prior to filing the Declaration of Demurring party. By filing such a declaration, the demurring party is “stating under penalty of perjury that a good faith attempt to meet and confer was made and explaining the reasons why the parties could not meet and confer.” (Code Civ. Proc., § 430.41, subd. (a)(2).) Defendants explain that the Declaration was based on an inability to meet and confer, but this explanation fails to comply with the statutory requirement that counsel explain that a good faith attempt to meet and confer was made and explain the reasons why the parties could not meet and confer. The court will hear from counsel.

[2] Plaintiff also argues Defendants’ initial request for a 30-day extension to respond was untruthful because Defendants did not engage in any efforts to settle the case. However, Defendants effectively counter that argument by submitting emails from Mr. Merino showing an effort to evaluate the case. (See Reply, Merino Decl., Ex. A.)

[3] Rule 3.110(g) states, “If a responsive pleading is not served within the time limits specified in this rule and no extension of time has been granted, the plaintiff must file a request for entry of default within 10 days after the time for service has elapsed. The court may issue an order to show cause why sanctions should not be imposed if the plaintiff fails to timely file the request for the entry of default.”

[4] Counsel request for sanctions is not supported by any description of work or time spent. The detail is insufficient to award sanction in the amount requested. The court will award sanctions in a reasonable amount to oppose a motion to set aside a default when taking into consideration issued discussed herein.