Judge: Kevin C. Brazile, Case: 21STLC06411, Date: 2023-05-01 Tentative Ruling

Hearing Date: April 5, 2024

Case Name: Llanos v. Sedgwick Formally York Risk, et al.

Case No.: 21STCV30098

Matter: Motion to Set Aside Default

Moving Party: Defendant Hamzathul Roshana Rashad

Responding Party: Unopposed

Notice: OK

Ruling: The Motion is granted.

Moving party to give notice.

If counsel do not submit on the tentative, they are strongly 

encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic. 

On March 22, 2022, a default was entered against Defendant Hamzathul Roshana Rashad.

Defendant Rashad now seeks to set her default aside under Code Civ. Proc. § 473(b), (d).  Counsel for Rashad states that “I agreed to accept service so long as Cassandra [(opposing counsel)] mutually agreed to not file a Request for Entry of Default, or at least informed me prior to filing such documents [s]o that I could prepare and file an Answer. Despite this fact, Cassandra ultimately filed a default against Rashad without providing me with any notice.”  “For over a year, I mistakenly believed that Cassandra had not entered default against Rashad, and that he would provide notice before filing any Request for Entry of Default.”

The mandatory provision of Code Civ. Proc. § 473(b) provides in relevant part, “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.”

“[A]n attorney affidavit of fault under the mandatory relief provisions of section 473, subdivision (b) need not include an explanation of the reasons for the attorney's mistake, inadvertence, surprise, or neglect.”  (Martin Potts & Assocs., Inc. v. Corsair, LLC (2016) 244 Cal. App. 4th 432, 443.)  Moreover, under this mandatory provision “it does not matter whether [counsel’s] neglect was excusable or inexcusable.”  (Ibid.) 

“If no default judgment has been entered, there appears to be no time limit on a motion for relief based on an attorney affidavit of fault.”  (Cal. Prac. Guide Civ. Pro. Before Trial Ch. 5-G.)

“In the absence of a prior warning of default, courts are inclined to grant CCP § 473(b) motions to set aside defaults. [Citations.]”  (Fasuyi v. Permatex, Inc. (2008) 167 Cal.App.4th 681, 702.)

Here, it appears that, despite that counsel were attempting to resolve this matter, Plaintiff’s counsel entered a default against Defendant without adequate warning.  Given that (1) an attorney affidavit of mistake or negligence based on lack of notice was filed and (2) there is no opposition, the Motion to Set Aside default is granted.  (Code Civ. Proc. § 473(b).)

Moving party to give notice.

If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.