Judge Lynne M. Hobbs, Case Number: 22STCV10612, Date: 2023-12-26 Tentative Ruling

Judge: Lynne M. Hobbs, Case: 22STCV10612, Date: 2023-12-26 Tentative Ruling

Case Number: 22STCV10612 Hearing Date: December 26, 2023 Dept: 30

DENNIS MCCARTHY vs CITY OF LOS ANGELES

TENTATIVE

Defendant’s motion to set aside default and default judgment is GRANTED. Defendant’s answer is deemed filed as of the date of this order. Defendant is ordered to pay monetary sanctions to Plaintiff in the amount of $1,000 within 30 days of this order.

Legal Standard

Code of Civil Procedure, section 473, subdivision (b) provides for two distinct types of relief—commonly differentiated as “discretionary” and “mandatory”—from certain prior actions or proceedings in the trial court. (Luri v. Greenwald (2003) 107 Cal.App.4th 1119, 1124 (Luri).)

The discretionary portion of section 473, subdivision (b) provides: “The court may, upon 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, subd. (b).)

The mandatory portion of section 473 requires the court to, “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.” (Code Civ. Proc., § 473, subd. (b).) A timely mea culpa declaration by a plaintiff’s attorney establishing that a dismissal was taken against her client as a result of attorney mistake, inadvertence, or neglect deprives the court of the discretion to deny relief. (Tackett v. City of Huntington Beach (1994) 22 Cal.App.4th 60, 65.)

“‘It is clearly established that ‘[a] motion for relief under section 473 is addressed to the sound discretion of the trial court and an appellate court will not interfere unless there is a clear showing of an abuse.’” (Burnete v. La Casa Dana Apartments (2007) 148 Cal.App.4th 1262, 1266.) “Although a trial court has discretion to vacate the entry of a default or subsequent judgment, this discretion may be exercised only after the party seeking relief has shown that there is a proper ground for relief, and that the party has raised that ground in a procedurally proper manner, within any applicable time limits.” (Cruz v. Fagor America, Inc. (2007) 146 Cal.App.4th 488, 495.)

Discussion

Defendant moves to set aside entry of default due to neglect or mistake.

First, default was entered against Defendant on June 15, 2023. Defendant filed the subject motion on November 13, 2023, which is within six months of entry of default and thus, the subject motion is timely. (See Code Civ. Proc., § 473, subdivision (b).)

Defendant is moving under the mandatory prong of CCP section 473(b). Defendant’s counsel provides a declaration signed under penalty of perjury, attesting that the General Litigation Division (GLD) of the City Attorney’s Office has collective responsibility for approximately 1,900 pending and active lawsuits. From the beginning of the COVID Pandemic to the present, for the most part, the GLD has not been fully staffed. (Sassounian Decl., ¶ 2.) Counsel states he missed the assignment of the case due to neglect, and mistake. (Id., ¶ 4.) The GLD has been under unprecedented strain for over a year which unfortunately had led to some mistakes such as not filing a timely answer in this case. (Id., ¶ 5.) This case was served on the City on March 30, 2022. At that time, GLD had lost five attorneys due to death, resignation, and transfer. This caused the need to transfer over 400 cases along with assigning the new cases coming in. In addition, they lost two attorneys to family leave. This led to some falling through the cracks; like the instant matter. (Id.)

Relief is mandatory when an attorney files the required affidavit, even if the attorney's neglect was inexcusable. (Carmel, Ltd. v. Tavoussi (2009) 175 Cal.App.4th 393, 401 (setting aside a default entered when the attorney failed to file an answer).) ¿No reason need be given for the existence of one of these circumstances and attestation that one of these reasons existed is sufficient to obtain relief, unless the trial court finds that the dismissal did not occur because of these reasons. (Graham v. Beers (1994) 30 Cal.App.4th 1656, 1660.)

The Court finds that relief is mandatory as Defendant’s counsel filed this motion timely and the default was due to mistake, inadvertence, and/or neglect of counsel based on counsel’s declaration.

Fees

“The court may properly order payment of costs or attorney fees to the adverse party as compensation for loss or expense occasioned by the granting of the section 473 motion.” (Jade K. v. Viguri (1989) 210 Cal.App.3d 1459, 1474 (Jade K.).)

Plaintiff requests to be reimbursed $4,751.50 for the expenses incurred by Plaintiff’s counsel, and for the relief sought here by Defendant to be conditioned upon Defendant being orde4red to pay this amount. (See C.C.P. §§473(b)-(c)(1)(C).) (See also C.C.P. §473(c)(2) (“However, where the court grants relief from a default or default judgment pursuant to this section based upon the affidavit of the defaulting party’s attorney attesting to the attorney’s mistake, inadvertence, surprise, or neglect, the relief shall not be made conditional upon the attorney’s payment of compensatory legal fees or costs or monetary penalties imposed by the court or upon compliance with other sanctions ordered by the court.”).)

Still, the Court finds it just and appropriate to require Defendant to compensate Plaintiff for the fees incurred in connection with the entry of default and the subject motion. As such, Defendant is ordered to pay Plaintiff monetary sanctions in the amount of $1,000 within 30 days of this order.