Judge: Malcolm Mackey, Case: 22STCV28111, Date: 2023-01-26 Tentative Ruling

Case Number: 22STCV28111    Hearing Date: January 26, 2023    Dept: 55

ALDAY v. GONZALEZ                                                      22STCV28111

Hearing Date:  1/26/23,  Dept. 55

#8:   MOTION TO SET ASIDE DEFAULT.

Notice:  Okay

Opposition

MP:  Defendants 15918 MERRILL, LLC, & JOY 2001, INC.

RP:  Plaintiff

Summary

On 8/29/22, Plaintiff JOSE ALDAY filed a Complaint alleging that Defendants have failed and refused to repay Plaintiff loan amounts due, and are in breach of an agreement and notes and deeds of trust.

The causes of action are:

1. BREACH OF CONTRACT;

2. FRAUD;

3. FOR AN ACCOUNTING.

MP Positions

Moving parties request an order setting aside default entries, on grounds including the following:

·         Defense counsel reasonably thought Plaintiff would not file defaults until after meet and confer re a demurrer.  However, Plaintiff quickly forged ahead and filed requests for default as to the two corporate defendants, which were entered 11/3/2022.

·         The entry of the defaults was the result of surprise, excusable neglect, and attorney fault in not safeguarding against the possibility of that action by plaintiff.

·         A responsive pleading is attached in the form of a joinder to the previously set demurrer.

RP Positions

Opposing party advocates granting with an award of $708.40 in fees and costs, for reasons including the following:

·         Plaintiff does not dispute that defense counsel Mortensen’s declaration meets the requirements of Code of Civil Procedure §473, subd. (b) and his fault was the cause of the defaults entered on November 3, 2022.

·         Neither defendant has attached a proposed answer to the complaint            .  Any demurrer would be untimely.

Tentative Ruling

The motion is granted, with a condition of payment.

Within 10 days, moving counsel shall pay to opposing counsel attorneys’ fees and costs in the sum of $708.40.

The proposed Notice of Joinder to Demurrer of moving Defendants, may be served and filed as a separate document, within 10 days.

It was not reasonable for moving counsel to assume that defaults would not be entered after expiration of the extended date, when the defaults were preceded by an emailed warning.  There must have been mutual efforts inducing a party reasonably to believe they were still working towards a resolution, as distinguished from the unilateral hope.  E.g., San Bernardino City Unif. Sch. Dist. v. Sup. Ct. (1987) 190 Cal. App. 3d 233, 239.  Accord  Arnke v. Lazzari Fuel Co., (1962) 202 Cal. App. 2d 278, 281. 

However, relief is available based upon moving counsel’s admission of fault for not taking steps to avoid default entry.  Where counsel seek relief alternatively under both the excusable and attorney-fault provisions of Code of Civil Procedure Section 473, and confirms that any act or omission leading to the entry of the default was done without the client's knowing participation, relief is mandatory. Solv-All v. Sup. Ct. (2005) 131 Cal.App.4th 1003, 1012.  Whenever relief is based upon an attorney’s affidavit of fault, the court must order the attorney to pay reasonable legal fees and costs of the opposing side, and may order penalties of up to $1,000. Solv-All v. Sup. Ct. (2005) 131 Cal.App.4th 1003, 1009 n.7 (citing CCP §473(b) and (c)).

As for the attached-pleading requirement, under Code of Civil Procedure Section 473, substantial compliance is sufficient.   Austin v. L. A. Unif. School Dist. (2016) 244 Cal.App. 4th 918, 933  (“ ‘The plain object of the provision [requiring a copy of the answer or other pleading] was simply to require the delinquent party seeking leave to contest on the merits, to show his good faith and readiness to at once file his answer in the event leave is granted by producing a copy of the proposed answer for the inspection of his adversary and the court.’ ”).  [Emphasis added.]   With regard to the requirement of lodging a proposed pleading under Code of Civil Procedure Section 473, some courts recognize substantial compliance where the pleading was filed and served before, or at, the hearing.  Carmel, Ltd. v. Tavoussi  (2009) 175 Cal.App.4th 393, 402 (answer sufficiently proffered at hearing);  Huh v. Wang  (2008) 158 Cal.App.4th 1406, 1421 n.4. 

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