Judge: Lisa K. Sepe-Wiesenfeld, Case: 24SMCV05726, Date: 2025-02-18 Tentative Ruling
Case Number: 24SMCV05726 Hearing Date: February 18, 2025 Dept: N
TENTATIVE RULING
Defendant Adrian Williams’ Motion to Set Aside the Default Judgment Entered Against Adrian
Williams is GRANTED.
Defendant Adrian Williams’ Answer, previously filed on January 8, 2025, is deemed filed as of
the date of entry of this order.
Defendant Adrian Williams to give notice.
REASONING
Defendant Adrian Williams (“Defendant”) moves the Court for an order vacating the default
entered against him on December 31, 2024 on the ground that Defendant’s failure to file an
answer was the result of attorney error.
Here, the default was entered on December 31, 2024, which defense counsel states he only
discovered in January 2025 after he had not received a request from Plaintiff GS Neptune Marina
Apartments, LLC (“Plaintiff”)’s counsel to set the case for trial. (Mot., Fagan Decl. ¶ 5.) Defense
counsel states that he made a mistake and filed an answer only for Defendant John Hall because
he did not realize the complaint also named Defendant. (Mot., Fagan Decl. ¶ 4.) Defense counsel
states that “a simple phone call or email about the missing Answer would have solved the
problem” (Mot., Fagan Decl. ¶ 6), thereby indicating Plaintiff’s counsel took Defendant’s default
without contacting defense counsel before doing so. It “is now well-acknowledged that an
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attorney has an ethical obligation to warn opposing counsel that the attorney is about to take an
adversary’s default” (Lasalle v. Vogel (2019) 36 Cal.App.5th 127, 135), and the Court is not
inclined to condone a default taken without notice.
Moreover, Code of Civil Procedure section 473, subdivision (b), provides that “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 [] resulting default entered by the clerk against his
or her client, and which will result in entry of a default judgment . . . unless the court finds that
the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise,
or neglect.” Defense counsel attests to his error in failing to notice that Defendant had been
named in the complaint, and simply attesting to attorney error is enough to warrant setting aside
the default. (Martin Potts & Associates, Inc. v. Corsair, LLC (2016) 244 Cal.App.4th 432, 438.)
Accordingly, Defendant Adrian Williams’ Motion to Set Aside the Default Judgment Entered
Against Adrian Williams is GRANTED. Defendant Adrian Williams’ Answer, previously filed
on January 8, 2025, is deemed filed as of the date of entry of this order.
