Judge Mark A. Young, Case Number: 19SMCV00158, Date: 2023-09-28 Tentative Ruling

Judge: Mark A. Young, Case: 19SMCV00158, Date: 2023-09-28 Tentative Ruling

Case Number: 19SMCV00158 Hearing Date: February 2, 2024 Dept: M

CASE NO.: 19SMCV00158

MOTION: Motion to Vacate Default/Default Judgment

HEARING DATE: 2/2/2024

Legal Standard

Relief under section 473(b) is either discretionary or mandatory. A motion for mandatory relief must be made no more than six months after entry of judgment and be accompanied by an attorney’s sworn affidavit attesting to the attorney’s “mistake, inadvertence, surprise or neglect.” (CCP § 473(b).) The attorney affidavit of fault must contain a “straight forward admission of fault.” (State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 610.) But it need not contain an explanation of the reasons for the attorney’s mistake, inadvertence surprise or neglect. (Martin Potts & Assocs., Inc. v. Corsair, LLC (2016) 244 Cal.App.4th 432, 438-441.)

Relief must be granted “unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect.” (Ibid.) If mandatory relief is granted, the court must “direct the attorney to pay reasonable compensatory legal fees and costs” to the opposing counsel or parties. (CCP § 473(b).)

Where a party cannot obtain an attorney affidavit of fault, the party may seek discretionary relief under section 473(b) due to “mistake, inadvertence, surprise, or excusable neglect.” (CCP § 473(b).) A motion for discretionary relief must be made “within a reasonable time but in no instance exceeding six months after the judgment, dismissal, order, or proceeding was taken.” (Id.) If discretionary relief is granted, the court may in its discretion order the moving party to pay the costs, including attorney fees, incurred in obtaining the default. (Rogalski v. Nabers Cadillac (1992) 11 Cal.App.4th 816, 823; Vanderkous v. Conley (2010) 188 Cal.App.4th 111, 118-119.) If the motion for discretionary relief is granted, the court may order the offending attorney to pay monetary sanctions up to $1,000 to opposing parties, or up to $1,000 to the State Bar Client Security Fund, or “[g]rant other relief as is appropriate.” (CCP § 473(c)(1)(A), (B), (C).)

A motion for relief under section 473(b) “shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted. . .” (CCP § 473(b).) However, this requirement is not jurisdictional; substantial compliance may suffice. (Carmel, Ltd. v. Tavoussi (2009) 175 Cal.App.4th 393, 403 [finding substantial compliance where counsel offered proposed answer at motion hearing rather than serving it with moving papers].)

Analysis

Defendant Heritage Escrow Company moves for an order: (1) vacating and setting aside the dismissal without prejudice of Heritage’s, “Cross-Complaint for Express Contractual Indemnity,” against Caroline Kreling, Darren Cobrea, John Cobrea and Elevated Equities, a Nevada limited liability company entered on October 27, 2023; (2) reinstating the cross-complaint of the Heritage Escrow Company; and (3) reinstating the defaults entered against cross-defendants Darren Cobrea, John Cobrea and Elevated Equities, LLC, a Nevada Limited Liability Company on the Cross-Complaint of the Heritage Escrow Company on

April 9 and 12, 2021.

As a result of a settlement, Heritage agreed to dismiss Kreling from their cross-complaint without prejudice. Counsel for Heritage mistakenly prepared form CIV-110 by identifying the cross-complaint, but failing to limit the dismissal without prejudice to Kreling only. (Ross Decl., ¶ 7; see RJN Ex. 1.) Notably, the proof of service on the Request for Dismissal states “as to Caroline Kreling on the Cross-Complaint of Heritage”. (Id.) On October 31, 2023, counsel discovered his mistake. (¶ 10.) Heritage promptly moved for relief on November 8, 2023.

The court finds that the above record shows good cause for mandatory and discretionary relief. (CCP § 473(b).)

Accordingly, the motion is GRANTED.