Judge: Mark A. Young, Case: 24SMCV03429, Date: 2025-05-30 Tentative Ruling

Case Number: 24SMCV03429    Hearing Date: May 30, 2025    Dept: M

CASE NAME:           Almont 8 Homeowners Association v. Consolidated Property Services Inc., et al.

CASE NO.:                24SMCV03429

MOTION:                  Motion to Vacate Default

HEARING DATE:   5/30/2025

Legal Standard

Relief under Code of Civil Procedure 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].) 

EVIDENTIARY ISSUES

Plaintiff’s objections to the Morrow declaration are SUSTAINED (lack of personal knowledge).

Plaintiff’s objections to the Glenn declaration are SUSTAINED as to nos. 3 and 5. Otherwise, they are OVERRULED.

Analysis

Defendant LB Property Management Inc. (LBPM) moves to set aside their default and for leave to file a proposed answer to Plaintiff Almont 8 Homeowners Association’s complaint. On September 9, 2024, the clerk entered default against LBPM upon Plaintiff’s request. LBPM filed the instant motion on January 3, 2025, within the jurisdictional time period.

LBPM demonstrates excusable mistake and neglect, and a reasonably diligent effort to vacate default. LBPM neglected to timely present a claim to National Claims Services, LLC, and secure counsel to file a response prior to default. LBPM mistakenly believed that its co-defendant, CPS, would have notified National because of its duty to defend and indemnify LBPM in this suit. (Glenn Decl., ¶¶ 3-5, 7-8.) LBPM explains that it was not until November 7, 2025, nearly two months after the initial default, that National agreed to LBPM as an additional insured, and assigned defense counsel in this matter. (Morrow Decl., ¶¶ 12-22; Glenn Decl. ¶¶ 9-18.) Upon being assigned, LBPM’s counsel contacted Plaintiff’s counsel to request that the default against LBPM be set aside. The parties negotiated a tolling agreement in exchange for a stipulation to set aside the default from November 13, 2024, to December 18, 2024. (Id.) The parties could not come to an agreement. This motion followed.

LBPM also demonstrates that vacating its default presents no risk of prejudice to Plaintiff. The action is still in its early stages. Plaintiff’s opposition fails to identify any prejudice. Plaintiff only speculates that LBPM may want to conduct duplicative discovery.

Accordingly, the motion is GRANTED.