Judge: Mark A. Young, Case: 23SMCV04827, Date: 2024-08-07 Tentative Ruling

Case Number: 23SMCV04827    Hearing Date: August 7, 2024    Dept: M

CASE NAME:           Farmers Ins. Exchange v. Nechaeva, et al.

CASE NO.:                23SMCV04827

MOTION:                  Motion to Vacate and Set Aside Default

HEARING DATE:   8/7/2024

Legal Standard

Relief under Code of Civil Procedure (CCP) 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

Defendants Galina Nechaeva and Natalia Livston move to set aside their defaults entered on December 14, 2023, and February 29, 2024. Plaintiff Farmers Insurance Exchange opposes the motion. Defendants timely moved on March 31, 2024, three and a half months after the first default and only a month and a half after the second default was entered.

Defendants demonstrate that the default was entered because of excusable mistake, inadvertence, surprise or excusable neglect. As to the first default, Defendants demonstrate that they forwarded the complaint to their insurer for defense in a timely manner, but the litigation file was not received by defense counsel until after the first default had been entered. (Wright Decl., ¶ 6.) The first default therefore resulted from either the insurer or counsel’s negligence. Thus, Nechaeva is entitled to mandatory and/or discretionary relief. As to the second default, Defendants show this was entered due to counsel’s excusable mistake, inadvertence, negligence, etc. The second default was requested after counsel had received the file and was actively representing Defendants in discussions with Plaintiff. (Wright Decl., ¶¶9-11.) Thus, the clients are apparently blameless in failing to timely respond.

The court observes no substantive prejudice to Plaintiff in vacating the defaults.

Accordingly, the motions are GRANTED. As relief was mandatory, Plaintiff is granted sanctions in the amount of $800.00 against Defendants’ counsel of record, Adam Wright Esq. of Collinson, Daehnke, Inlow & Greco. Sanctions are to be paid within 30 days.