Judge: Mark A. Young, Case: 22SMCV01624, Date: 2024-04-16 Tentative Ruling

Case Number: 22SMCV01624    Hearing Date: April 16, 2024    Dept: M

CASE NAME:           Adopt a Highway Maintenance, Inc., v. DBO Investments SA, LLC, et al.

CASE NO.:                22SMCV01624

MOTION:                  Motion to Set Aside/Vacate Default and Default Judgment

HEARING DATE:   4/16/2024

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 DBO Investments SA, LLC, moves to set aside and vacate default/default judgment. As set forth below, Defendant does not demonstrate any grounds for relief and the motion is DENIED.

Here, the Court lacks jurisdiction to vacate the judgment. The statute provides a six-month time limit from the date of judgment to bring such a motion. On February 24, 2023, the Court entered default judgment against Defendant. On July 25, 2023, Defendant filed a notice of motion on the grounds that “service of the Summons did not result in actual notice (CCP §473.5); the judgment and/or default is void (CCP §473(d)); and other arguments.” In that notice, Defendant did not raise the discretionary or mandatory provisions for relief under CCP section 473(b). The notice was not “accompanied by an attorney’s sworn affidavit” as required for mandatory relief. On October 31, 2023, which is more than six months after the judgment, over a year after Defendant had actual notice of this suit and default was entered, Defendant filed and served this motion and declaration asserting attorney-mistake for the first time. Thus, the application for relief was not filed within six months of the entry of judgment. Moreover, the declarations are not verified per Code of Civil Procedure section 2015.5 (neither declarant states the date or place of execution) and the attorney affidavit of fault is unsigned. Therefore, the court lacks jurisdiction to vacate default or default judgment on the mandatory or discretionary grounds of section 473(b).

Defendant asserts that default judgment is void and/or may be vacated because Defendant did not have actual knowledge of this action. (CCP §§ 473(d), 437.5.) However, Defendant admits that it had actual notice of this action on October 18, 2022. (Harrison Decl., ¶ 2; Gardea Decl., ¶ 3.) Defendant also does not explain on what grounds the judgment is void.

Defendant lastly asserts equitable grounds. However, the record demonstrates that Defendant did not diligently seek to set aside default or default judgment. Defendant was aware of this action and its default in October 2022. Defendant admits that it did nothing to correct this until, at the earliest, July 2023. The Court cannot consider this nine-month delay to be diligent.

Accordingly, the motion is DENIED.