Judge: Latrice A. G. Byrdsong, Case: 22STLC07186, Date: 2023-10-02 Tentative Ruling
Case Number: 22STLC07186 Hearing Date: October 2, 2023 Dept: 25
Sunrun Installation Services, Inc. v. Salazar
22STLC07186
BACKGROUND
On October 28, 2022, Plaintiff Sunrun Installation Services, Inc. (“Plaintiff”) filed a complaint against Defendant Alejandro Salazar (“Defendant”) for a breach of contract dispute.
On January 27, 2023, Plaintiff filed its Proof of Service showing Defendant was personally served with a copy of the Summons and Complaint on December 22, 2022. (Garan Decl., ¶ 3.) Defendant did not timely file an Answer to Plaintiff’s Complaint.
On May17, 2023, Plaintiff sought, and the Court entered its Request for Entry of Default as to the Defendant. (Garan Decl., ¶¶ 4, 5.) On or about May 25, 2023, Plaintiff submitted its Default Judgment Package to the Court. (Garan Decl., ¶ 6.)
On or about June 1, 2023, counsel for Plaintiff was informed by Plaintiff that Debtor had been in direct communications with Plaintiff related to the Complaint sometime after the request for entry of default was entered, and that the parties had resolved issues related to the Complaint. As such, Plaintiff wished to vacate the default, withdraw the Default Judgment Package, and Dismiss the Case without prejudice. (Garan Decl., ¶ 7.)
On or about June 2, 2023, the Court entered Judgement against the Defendant pursuant to the Default Package; however, counsel for Plaintiff had not yet been able to contact the Court to withdraw the Judgment Package or file a Motion to Vacate the Default. Accordingly, this Motion is for that purpose. (Garan Decl., ¶¶ 8, 9.)
On July 07, 2023, Plaintiff filed the instant motion to vacate dismissal. Once the Judgment has been vacated and/or set aside, Plaintiff will file a Request for Dismissal without prejudice to thereafter dismiss the case.
Grounds for Motion
Plaintiff moves to vacate the dismissal under CCP § 473(b) on the grounds that the action was dismissed as a result of its attorney’s inadvertence.
LEGAL STANDARD
“The court may, upon any terms as may be just, 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. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (Code Civ. Proc., § 473(b).)
The court has broad discretion to vacate the entry of default, default judgment or a dismissal, but that discretion can be exercised only if the defendant establishes a proper ground for relief, by the proper procedure and within the set time limits. Pursuant to CCP section 473(b), a motion to set aside/vacate cannot be brought more than 6 months after the entry of default and must be made within a “reasonable time.”
CCP section 473(b) provides that when an application for relief is made no more than six months after entry of dismissal and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, the court shall set aside a dismissal entered against the attorney’s client, 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(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.”
Where an “attorney affidavit of fault” is filed, there is no requirement that the attorney's mistake, inadvertence, or neglect be excusable. Relief must be granted even where the default or dismissal resulted from inexcusable neglect by defendant's attorney. (Robert E. Weil, et al., California Practice Guide: Civil Procedure Before Trial ¶ 5:495 (2018).)
DISCUSSION
Plaintiff moves to vacate the dismissal under CCP § 473(b) on the grounds that the action was dismissed as a result of its attorney’s inadvertence. Plaintiff’s counsel admits that without his knowledge the Debtor had been in direct contact with the Plaintiff and had resolved the issues contained within the Complaint. (Garan Decl., ¶ 7.) Counsel avers that the Court entered Judgment against the Defendant before Plaintiff’s Counsel had been able to contact the Court to withdraw the Judgment Package. (Garan Decl., ¶ 8.)
Further, as required by statute, the Motion was within the 6 months of the order, as the Default was entered on June 2, 2023, and this Motion was filed on July 7, 2023. Therefore, Counsel attests that the order was due to his inadvertence and has filed a declaration in support of his inadvertence.
However, Counsel does not declare his statement to be true under the penalty of perjury in the State of California. (See Garan Decl.)
CONCLUSION
Plaintiff’s Counsel has NOT submitted an attorney’s sworn affidavit attesting to his inadvertence. Accordingly, Plaintiff’s motion to vacate the dismissal under CCP § 473(b) is CONTINUED to NOVEMBER 7, 2023 AT 10:00 A.M. in DEPARTMENT 25 OF THE SPRING STREET COURTHOUSE, until Counsel fixes the error.
briefing addressing the issues discussed herein at least 16 court days prior to
the continued hearing date. Failure to do so will result in the Motion
being placed off calendar or denied.