Judge: Mark E. Windham, Case: 22STLC06967, Date: 2023-03-09 Tentative Ruling
Case Number: 22STLC06967 Hearing Date: March 9, 2023 Dept: 26
MOTION TO VACATE ENTRY OF DEFAULT
(CCP § 473(b))
TENTATIVE RULING:
Defendant Abdelnour Mikhael’s Motion
to Vacate Entry of Default is GRANTED. THE ANSWER AND CROSS-COMPLAINT WERE
PREVIOUSLY FILED ON JANUARY 23, 2023.
ANALYSIS:
Plaintiff Gomez Law, APC (“Plaintiff”)
filed the instant action for breach of retainer agreement against Defendant Abdelnour
Mikhael (“Defendant”) on October 20, 2022. Following Defendant’s failure to
file a responsive pleading, the Court entered default on January 20, 2023.
Defendant filed an Answer and Cross-Complaint on January 23, 2023.
Defendant filed the instant
Motion to Vacate Default on February 14, 2023. No opposition has been filed to
date.
Discussion
Defendant
moves
to vacate the entry of default pursuant to Code of Civil Procedure section 473,
subdivision (b). Under this statute, an application for relief must be
made no more than six months after entry of the order from which relief is
sought and must be accompanied by an affidavit of fault attesting to the
mistake, inadvertence, surprise or neglect of the moving party or its attorney.
(Code Civ. Proc., § 473, subd. (b); English v. IKON Business Solutions
(2001) 94 Cal.App.4th 130, 143.) The motion must also be accompanied by a copy
of the moving defendant’s proposed pleading. (Code Civ. Proc., § 473, subd.
(b).) When based on an attorney affidavit of fault, the relief sought must be
granted if the statutory requirements are satisfied. (Leader v. Health
Industries of America, Inc. (2001) 89 Cal.App.4th 603, 612.) When brought
pursuant to the provision for discretionary relief based on party fault, the
request must have been filed within a reasonable amount of time.
The Motion was timely filed
three weeks after entry of default and is supported by a declaration showing
the default was entered due to Defendant’s attorney’s mistake, inadvertence,
surprise or excusable neglect. Specifically, defense counsel declares that
following a meet and confer effort, an extension of the time to respond to the
Complaint was granted by Plaintiff. (Motion, Bhola Decl., ¶¶11-19 and Exhs.
1-3.) Defense counsel, however, did not timely see the email granting the extension
and was engaged in trial on a different case. (Id. at ¶19-20.) As a
result, Plaintiff sought entry of default on January 20, 2023, at the same time
defense counsel was preparing the Answer and Cross-Complaint. (Id. at
¶¶21-22.) Based on the foregoing, the statutory requirements to vacate the
entry of default are satisfied.
The Court additionally notes
that it would vacate the entry of default due to Plaintiff’s counsel’s lack of
professional courtesy. The Court of Appeals has explained:
“The quiet speed of plaintiffs'
attorney in seeking a default judgment without the knowledge of defendants'
counsel is not to be commended.” (Smith v. Los Angeles Bookbinders Union (1955)
133 Cal.App.2d 486, 500, 284 P.2d 194 (Bookbinders).)
In contrast to the stealth and speed
condemned in Bookbinders, courts and the State Bar emphasize warning and
deliberate speed. The State Bar Civility Guidelines deplore the conduct of an
attorney who races opposing counsel to the courthouse to enter a default before
a responsive pleading can be filed. (Fasuyi v. Permatex, Inc. (2008) 167
Cal.App.4th 681, 702, 84 Cal.Rptr.3d 351 (Fasuyi), quoting section 15 of the
California Attorney Guidelines of Civility and Professionalism (2007).)
Accordingly, it is now well-acknowledged that an attorney has an ethical
obligation to warn opposing counsel that the attorney is about to take an
adversary's default. (Id. at pp. 701-702, 84 Cal.Rptr.3d 351.)
In that regard we heartily endorse the
related admonition found in The Rutter Group practice guide, and we note the
authors' emphasis on reasonable time: “Practice Pointer: If you're representing
plaintiff, and have had any contact with a lawyer representing defendant, don't
even attempt to get a default entered without first giving such lawyer written
notice of your intent to request entry of default, and a reasonable time within
which defendant's pleading must be filed to prevent your doing so.” (Weil &
Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group
2008) § 5:73, p. 5-19 (rev. #1, 2008) as quoted in Fasuyi, supra, 167
Cal.App.4th at p. 702, 84 Cal.Rptr.3d 351.)
(Lasalle v. Vogel (2019) 36 Cal.App.5th 127, 135.) Plaintiff’s
counsel failed to contact defense counsel after the deadline to file the
responsive pleading passed and provide warning that entry of default would be
sought. Accordingly, the entry of default is also vacated on these grounds.
Conclusion
Defendant Abdelnour Mikhael’s Motion
to Vacate Entry of Default is GRANTED. THE ANSWER AND CROSS-COMPLAINT WERE
PREVIOUSLY FILED ON JANUARY 23, 2023.
Moving party to give notice.