Judge: Latrice A. G. Byrdsong, Case: 22STLC07740, Date: 2023-10-30 Tentative Ruling
Case Number: 22STLC07740 Hearing Date: October 30, 2023 Dept: 25
Hearing Date: Monday, October 30, 2023
Case Name: LAW
OFFICES OF STEPHEN L. CAWELTI, a Professional corporation v. ROBERT J.
GIOMBETTI; and DOES 1-20
Case No.: 22STLC07740
Motion: Motion to Set Aside Default
Moving Party: Defendant
Robert J. Giombetti
Responding Party: Plaintiff Law Offices of Stephen L.
Cawelti
Notice: OK
Tentative Ruling: Defendant Robert J. Giombetti’s
Motion to Set Aside Default is GRANTED.
The Answer filed by the Defendant on 01/31/2023 is deemed to be Defendant's Answer to the Complaint.
BACKGROUND
On November
15, 2022, Plaintiff Law Offices of Stephen L. Cawelti (“Plaintiff”), a
Professional corporation, filed a complaint against Defendant Robert J.
Giombetti (“Defendant”), and DOES 1 through 20, inclusive, alleging causes of
action for (1) breach of contract and (2) common counts.
On
January 24, 2023, this Court entered default against Defendant. (Request for
Entry of Default/Judgment 1/24/23.)
On October
6, 2023, Defendant filed a Motion to Set Aside Default. On October 17, 2023,
Plaintiff filed a responsive declaration. On October 20, 2023, Defendant filed
a reply.
MOVING PARTY
POSITION
Defendant moves
for an order setting aside the default entered against him on January 24, 2023
and leave to defend this action by accepting the Answer filed by him on January
31, 2023. Defendant argues that his counsel erroneously but reasonably believed
that the request for entry of default had been rejected. Defendant also argues
that the declarations filed fulfill the mandatory relief requirements of Code
of Civil Procedure (CCP), Section 473(b) because no judgment has been entered.
Moreover, Defendant argues that the Court has power to set aside the default on
equity grounds. Additionally, Defendant argues that he can satisfy the elements
required to obtained relief from default.
OPPOSITION
In Response,
Plaintiff asserts that Defendant was aware in January 2023 that default had
been entered in this case and his attorney admitted the same in email
exchanges.
REPLY
Defendant argues that he is not
claiming ignorance only that a misunderstanding came about after the email
exchanges, whereby his counsel concluded that Plaintiff must had been mistaken
about the entry of default. Defendant also asserts that Judge Griego noted confusion
created by the docket entries at hearing on Plaintiff’s ex parte application on
July 27, 2023.
ANALYSIS
I. Motion to Set Aside Default and Default Judgment
A. Legal Standard
Pursuant the Code of Civil Procedure (CCP), Section 473(b), 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 Code of Civil Procedure,
Section 473(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.” (CCP § 473(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.” (CCP § 473(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”]).
“The six-month limit is mandatory; a court has no authority to grant relief
under section 473, subdivision (b), unless an application is made within the
six-month period.” (Arambula v. Union Carbide Corp. (2005) 128 Cal.App.4th 333, 340,
citations omitted.) months,
after the judgment, dismissal, order, or proceeding was taken.” (CCP § 473(b).)
Pursuant the Code of Civil Procedure,
Section 86(b)(3), “[t]he following cases in equity are limited civil cases…[a]
case to vacate a judgment or order of the court obtained in a limited civil
case through extrinsic fraud, mistake, inadvertence, or excusable neglect.”
(CCP § 86(b)(3).)
B. Discussion
In Olivera v. Grace (1942) 19 Cal.2d 570, the court held that “One
who has been prevented by extrinsic factors from presenting his case to the
court may bring an independent action in equity to secure relief from the
judgment entered against him. ” (Olivera v. Grace (1942) 19 Cal.2d 570, 575-576.)
Here, Defendant Robert J. Giombetti
(“Defendant”) moves for an order setting aside the default entered
against him on January 24, 2023, on behalf of Plaintiff
Law Offices of Stephen L. Cawelti (“Plaintiff”) and leave to defend this
action by accepting the Answer filed by him on January 31, 2023 on the grounds
that default was entered due to his counsel of record’s inadvertence or
excusable neglect. Defendant argues that despite this motion being brought more
than six months after entry of the default, the Court has the inherent power to
set aside the default on equity grounds of extrinsic fraud or mistake because
this action is a limited jurisdiction case. (citing Weil & Brown, Cal.
Prac., Guide: Civil Procedure Before Trial (The Rutter Group 2023) ¶ 5:281; see
also CCP § 86.) Defendant’s argument is well-taken. This present action is a
limited civil case in equity because the amount demanded exceeds $10,000.00 but
does not exceed $25,000.00 and Defendant is seeking to set aside default on
grounds on mistake, inadvertence, and excusable neglect.
Furthermore, Defendant argues that
he can satisfy the elements to retain relief default. In Rappleyea v. Campbell (1994) 8 Cal.4th 975, the court held that
“To set aside a judgment based upon extrinsic mistake one must satisfy
three elements. First, the defaulted party must demonstrate that it has a
meritorious case. Second[ ], the party seeking to set aside the default must
articulate a satisfactory excuse for not presenting a defense to the original
action. Last [ ], the moving party must demonstrate diligence in seeking to set
aside the default once...discovered.” (Rappleyea v. Campbell (1994) 8
Cal.4th 975, 982.) Moreover, “diligence is the most inextricably
intertwined with prejudice.” (Rappleyea v. Campbell (1994) 8 Cal.4th at
p. 983-984.) As such, the Rappleyea court concluded that “Prejudice to a
plaintiff is obviously less if judgment has not been entered when a defendant
seeks equitable relief.” (Id. at p. 984.) Defendant asserts that he
signed a Settlement Agreement and Mutual General release on March 17, 2020,
which released him from any obligation to make further payments to Plaintiff. (Byrne
Decl., ¶ 2, Exh. 2.) Defendant further asserts that he is entitled to present
his defense that Plaintiff did not act competently in the family law action
because Plaintiff must prove his fees were reasonable.
Additionally, Defendant argues that his counsel of record reasonably
believed that no default had been entered when he filed his Answer due to the
Docket entries being unclear. (Janes Decl., ¶ 3.) Defendant asserts that even
the Honorable Judge Thomas J. Griego noted that the docket entries could create
confusions at the hearing on Plaintiff’s ex parte application on July 27, 2023. (Id. at ¶
6.) Defendant also argues that his counsel only reviewed the docket after email
exchanges with Plaintiff, where Plaintiff stated default had been entered. (Byrne
Decl., ¶¶ 3-4.) Defendant asserts that the docket had two entries noting the
request for entry of default had either been rejected or not entered, as such,
Defendant’s counsel filed and served the Answer. (Id.) Subsequently,
Defendant contends that he did not discover default had actually been entered
until Plaintiff filed his ex parte application to strike the answer. (Id.
at ¶ 6.) Also, like in Rappleyea, Defendant asserts that judgment had
not been entered in this instant case. In fact, Defendant argues that Plaintiff
waited months before attempting to file a default judgment and to bring an
application to strike the Answer.
In response, Plaintiff asserts that he received an email from
Steven P. Byrne, Esq., counsel for Defendant on January 28, 2023, with an
attached letter alleging that a Settlement Agreement had been prepared by
Plaintiff’s office, signed by Defendant, and returned to Plaintiff. (Cawelti
Decl., ¶ 7.) Plaintiff contends that no such agreement have been received. (Id.)
Plaintiff further asserts that he reminded Mr. Byrne that the proof of service
on the request to enter default had been filed and default had been entered
that same day. (Id. at ¶ 8.) Plaintiff states that Mr. Byrne requested
the parties stipulate to vacating the default and he responded that he was not
agreeable to that request. (Id.) Plaintiff also states that he informed
Mr. Byrne any prior discussions of settlement were withdrawn because Defendant
failed to respond to settlement discussions. (Id.) Lastly, Plaintiff
asserts that he asked Mr. Byrne what was the basis of this present motion and
Mr. Byrne replied that Defendant was under the impression that the matter was
settled. (Id.)
In reply, Defendant reiterates the
arguments set forth above and claims that ignorance did not lead to the delay
in filing this instant motion. Defendant also argues that Plaintiff’s
declaration in response to this present motion reveals a genuine dispute
between the parties that should be decided on the merits. Specifically,
Defendant contends that a settlement agreement was reached and that he fully
performed the agreement, however, Plaintiff alleges no agreement ever reached.
(Byrne Decl., ¶¶ 2-3.)
Therefore, the Court finds that
Defendant’s motion is warranted under law. Defendant provided sufficient
evidence to support that (1) this is a limited civil case in equity under CCP,
Section 86(b)(3); (2) default judgment was not entered in this instant matter;
(3) he has a meritorious defense in this matter; (4) the advanced declaration
of his counsel of record attests to his inadvertence and excusable neglect that
led to default being entered against Defendant; and (5) the advanced
declaration from his counsel of record and co-counsel provides a satisfactory
explanation for why this motion was delayed. (Schwartz v. Smookler (1962) 202 Cal.App.2d 76,
83.)
II.
Conclusion
Accordingly, Defendant Robert
J. Giombetti’s Motion to
Set Aside Default is GRANTED.
The Answer filed by the Defendant on 01/31/2023 is deemed to be Defendant's Answer to the Complaint.
The 05/14/2024 Trial remains on calendar as currently scheduled.