Judge: Marcella O. Mclaughlin, Case: 37-2023-00020675-CU-BC-CTL, Date: 2024-03-29 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - March 28, 2024

03/29/2024  09:00:00 AM  C-72 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Marcella O McLaughlin

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Civil - Unlimited  Breach of Contract/Warranty Motion Hearing (Civil) 37-2023-00020675-CU-BC-CTL WIEGARDT VS CUTTING EDGE HOME INC [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Set Aside Default, 01/09/2024

The motion to set aside the default is GRANTED pursuant to the mandatory provision in Code of Civil Procedure section 473(b).

A. Although defendant did not move for mandatory relief, such relief was requested in its reply brief and defense counsel filed a declaration attesting to his neglect in failing to timely file an answer. See ROA 27. 'The law favors judgments based on the merits, not procedural missteps.' Lasalle v. Vogel (2019) 36 Cal.App.5th 127, 134. Under the mandatory relief provision, it does not matter whether Mr. Miltner's neglect was excusable or inexcusable. Martin Potts & Associates, Inc. v. Cosair, LLC (2016) 244 Cal.App.4th 432, 443. '[I]nexcusable neglect is precisely the kind of attorney neglect contemplated by the provision for mandatory relief[.]' Gee v. Greyhound Lines, Inc. (2016) 6 Cal.App.5th 477, 492-93.

Accordingly, the court finds that the requirements for mandatory relief have been met. The default and default judgment entered on November 30, 2023 (ROA 12) and March 6, 2024 (ROA 34), respectively, are hereby set aside.

B. The court declines to rule on defendant's uncalendared motion to compel arbitration (ROA 42-44).

The proposed responsive pleading should have been submitted in connection with the motion to set aside default – not filed as a standalone motion. See Code Civ. Proc. § 473(b). Defendant is directed to call the court's independent calendar clerk to reserve a hearing date for the motion to compel arbitration.

Defendant must then re-notice the motion with the hearing date provided.

C. Mr. Miltner is directed to pay reasonable attorney's fees and costs to plaintiffs' counsel in the amount of $500. See Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 839 ('To protect the opposing party, a court that grants relief based on an attorney's affidavit of fault must 'direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties.'' (quoting Code Civ. Proc. § 473(b)). The payment must be remitted by April 26, 2024.

D. The court hereby sets a CMC for this matter for May 31, 2024 at 2:00 p.m. in Dept. 72.

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