Judge: Marcella O. Mclaughlin, Case: 37-2023-00020675-CU-BC-CTL, Date: 2024-05-03 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - May 02, 2024

05/03/2024  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 relief provision in Code of Civil Procedure section 473(b).

A. As an initial matter, plaintiffs' argument regarding 'inadequate notice' is not well taken. The court continued the hearing – at plaintiffs' request – and allowed supplemental briefing regarding the mandatory relief provision. Plaintiffs thus had notice and an opportunity to be heard on the issue. See Gilbert v. City of Sunnyvale (2005) 130 Cal.App.4th 1264, 1279 ('The essence of procedural due process is notice and an opportunity to respond.').

B. Turning to the merits, a trial court is obligated to set aside a default or default judgment if the motion for mandatory relief (1) is filed within six months of the entry of judgment, (2) 'is in proper form,' (3) is accompanied by the attorney affidavit of fault, and (4) demonstrates that the default or dismissal was 'in fact caused by the attorney's mistake, inadvertence, surprise, or neglect.' Code Civ. Proc. § 473(b).

'When an attorney 'attests to' – that is, declares to be true – facts demonstrating he or she was at fault, application of section 473 is not negated by the attorney's contrary opinion.' Carmel, Ltd. v. Tavoussi (2009) 175 Cal.App.4th 393, 401.

Here, although Mr. Miltner attempts to deflect blame from himself, the facts in his moving and reply declarations demonstrate that his neglect was the cause of defendant's failure to answer and the subsequent entry of default. Mr. Miltner states that he began representing defendant in early August 2023 – well before default was entered – and was responsible for 'all communications' with plaintiffs' counsel. (Miltner Decl., ¶ 3; Miltner Reply Decl., ¶ 9.) Critically, Mr. Miltner admits that plaintiffs' counsel 'threatened to enter default' during the parties' negotiations regarding arbitration. (Miltner Decl., ¶ 11.) Thus, Mr. Miltner declarations are sufficient to entitle defendant to mandatory relief.

Plaintiffs' reliance on State Farm Fire & Casualty Co. v Pietak (2001) 90 Cal.App.4th 600 is misplaced.

The attorney in State Farm submitted a barebones declaration stating only that he had ''no authority from [his] client to dismiss the breach of contract claims, breach of implied covenant of fair dealing and good faith, defamation, and other claims against STATE FARM by PIETAK when this case was dismissed.'' State Farm, 90 Cal.App.4th at 607. The attorney also expressly disclaimed any responsibility in the supporting memorandum of points and authorities, asserting that what transpired was 'not a case of neglect on his part.' Id. at 609. The submissions in this case are not similar.

C. The phrase 'in proper form' means that the application for relief under section 473(b) must be accompanied by the pleading proposed to be filed therein. Hernandez v. FCA US LLC (2020) 50 Calendar No.: Event ID:  TENTATIVE RULINGS

3111215  8 CASE NUMBER: CASE TITLE:  WIEGARDT VS CUTTING EDGE HOME INC [IMAGED]  37-2023-00020675-CU-BC-CTL Cal.App.5th 329, 336-37. '[S]ubstantial compliance with this requirement is sufficient.' Dollase v. Wanu Water, Inc. (2023) 93 Cal.App.5th 1315, 1324.

In this case, defendant submitted a motion to compel arbitration as its proposed responsive pleading.

ROA 42-44. Defendant has therefore substantially complied with the 'in proper form' requirement. See Code Civ. Proc. § 1281.7; see also Dollase, 93 Cal.App.5th at 1325-26 (declining to construe the term 'pleading' in section 473(b) narrowly); Carmel, 175 Cal.App.4th at 403 (finding substantial compliance where responsive pleading proffered on the day of the hearing).

Accordingly, the court finds that the requirements for mandatory relief have been met. Code Civ. Proc. § 473(b). 'The law favors judgments based on the merits, not procedural missteps.' Lasalle v. Vogel (2019) 36 Cal.App.5th 127, 134. The default and default judgment entered on November 30, 2023 (ROA 12) and March 6, 2024 (ROA 34), respectively, are hereby set aside.

D. Mr. Miltner is directed to pay reasonable attorney's fees and costs to plaintiffs' counsel in an amount to be determined by noticed motion. 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 court, on its own motion, advances the motion for attorney's fees currently set for August 16, 2024 (ROA 58) to June 14, 2024 at 9:00 a.m. in Dept. 72.

E. The CMC set for today (ROA 56) is hereby continued to June 14, 2024 at 9:00 a.m. in Dept. 72.

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