Judge: Mark H. Epstein, Case: 23SMCV02874, Date: 2024-04-11 Tentative Ruling

Case Number: 23SMCV02874    Hearing Date: April 11, 2024    Dept: I

The motion to vacate default is GRANTED on condition that defendant pay plaintiff the sum of $2475 in attorneys’ fees.

This is a quiet title case.  Defendant was served with the complaint on August 14, 2023, and a default was entered on October 4, 2023.  At the December 26, 2023, Case Management Conference, the court stated that unless defendant moved quickly, the court would be prepared to assume that allowing the default was tactical, and thus the default would not be vacated.  The court required that the motion be filed by the next hearing, which was February 2, 2024.  No motion was filed by then.  Instead, defendant filed the motion on February 22, 2024.

Defense counsel submitted a declaration pursuant to 473(b) stating that the default was counsel’s mistake and that relief should be given.  Under the law, the court must grant the motion where there is an attorney declaration of fault.  There is an exception if the court disbelieves counsel and, on the basis of an evidentiary record, concludes that the decision to accept default was actually made by the client, not counsel.  (Todd v. Thrifty Corp. (1995) 34 Cal.App.4th 986.)  Absent that, however, relief from default is mandatory.

Here, counsel Browne states that he mistakenly believed that the suit was against a different client (also named Ben-Jabr), and that he did not see the DOE amendment naming his client.  Once he discovered the mistake, he asked plaintiff’s counsel to stipulate to set aside the default, but plaintiff refused.  When Browne finally got around to preparing a motion to vacate default a few months later, he saw the December 26, 2023, or der.  He claims he did not see it before then due to knee issues. 

The court credits Browne’s statement that the fault was his and not a deliberate ploy by his client.  Browne has forthrightly admitted malpractice, and the court will take him at his word on that.  Therefore, the motion is GRANTED.  However, where the motion is granted, the court can condition the order on the payment of opposing counsel’s fees.  Plaintiff set forth the fees here, and they are $2475.  The court will ORDER defendant to pay that amount as a condition to granting the motion.  Payment is to be made within 5 court days.

The court counsel’s attorney Browne to step up his game.  This was somewhat of a wobbler, given the court’s express warning on December 26, 2023.  Browne’s decision to take the approach he took—waiting months before filing the motion—is not sufficient.  The court trusts that attorney Browne will now start paying the appropriate attention to this case.  While the statute requires that defaults be set aside when the attorney’s error is the cause, the law is not nearly so forgiving in other contexts.  Now that attorney Browne is on notice, the court is not likely to be terribly forgiving either.  That said, so far as the court is concerned, we are starting with a clean slate.  The court will set a CMC date and the case will get back on track.