Judge: Lynne M. Hobbs, Case: 24STCV12027, Date: 2024-11-22 Tentative Ruling

Case Number: 24STCV12027    Hearing Date: November 22, 2024    Dept: 61

CASH 4 LESS, INC. vs RACHEL BENDAVID

TENTATIVE

Defendant Rachel Bendavid’s Motion to Vacate and Set Aside Default is GRANTED. Defendant is ordered to file her answer within 20 days.

Moving party to provide notice.

DISCUSSION

Code of Civil Procedure section 473, subdivision (b) states:

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 . . . . 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 . . . 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. “The test of whether neglect was excusable is whether a reasonably prudent person under the same or similar circumstances' might have made the same error.” (Luri v. Greenwald (2003) 107 Cal.App.4th 1119, 1128, internal quotation marks omitted.)

Defendant Rachel Bendavid (Defendant) seeks relief from the default entered against her on July 31, 2024, on the grounds that when she retained counsel on July 25, 2024, the attorney failed to file an answer until September 24, 2024, because his 87-year-old mother was undergoing a critical health emergency, in the form of a blood clot in her leg, that diverted his attention away from this matter until September 24, 2024. (Sadigh Decl. ¶ 4.)

Plaintiff in opposition argues that the motion should be denied because Defendant does not explain why she did not discover entry of default until September 24, 2024. (Opposition at pp. 2–3.) Plaintiff also seeks an award of sanctions if the motion is granted in the amount of $1,000.00 under Code of Civil Procedure § 473, subd. (c). (Opposition at p. 3.)

Defendant has shown excusable neglect in the form of her counsel’s family medical emergency, which diverted his attention from litigation concurrent with the filing of default. Such justifications have been held to constitute excusable neglect in other cases. (Lasalle v. Vogel (2019) 36 Cal.App.5th 127, 140–141 [holding trial court abused discretion in denying relief from default when attorney was given an “unreasonably short deadline” and prevented from addressing matters by “significant family emergencies of her own”].) Contrary to Plaintiff’s argument, Defendant’s counsel has provided his reasons for failing to seek relief sooner, namely the diversion from practice until late September 2024. (Sadigh Decl. ¶ 4.) There is no cause for an award of sanctions or penalties on these facts.

The motion is GRANTED.