Judge: Mark H. Epstein, Case: 23SMCV04653, Date: 2024-08-06 Tentative Ruling

Case Number: 23SMCV04653    Hearing Date: August 6, 2024    Dept: I

This is a motion to vacate a default.  The motion is GRANTED.

Defense counsel received the complaint in November 2023.  Counsel reached out to plaintiff’s counsel later that month, noting that service was improper and also to state that there was a defect regarding plaintiff’s standing.  Counsel asked plaintiff’s counsel to let him know if the complaint was going to be corrected and whether plaintiff was going to re-serve defendant.  Defense counsel offered to accept service of process.  Or at least that is what the defense says.  Plaintiff’s counsel recalls being contacted, but telling defense counsel that service was proper and that plaintiff was going to move forward and he expected a timely response to the complaint. 

However the conversation occurred, defense counsel says that there was no communication after that and it was not until counsel checked the docket that he learned that there had been a default entered.  Counsel sent plaintiff’s counsel a letter asking that the default be set aside but plaintiff’s counsel did not respond.

The merits here are easy.  Given the state’s strong policy in favor of adjudication on the merits and the lack of any prejudice, the court believes it would be an abuse of discretion to deny the motion.  True, at least plaintiff states that he told defense counsel that he expected a response.  But not having obtained one, the better course would be to call rather than to take the default.  The motion to vacate is GRANTED.

The harder question is why we are here.  Frankly the court has better things to do than to adjudicate these sorts of avoidable and technical motions and squabbles.  Had the parties (especially plaintiff) operated with even an ounce of common sense or professional courtesy, we would not be here today.  Plaintiff’s counsel should have called defense counsel before taking the default.  It takes no brilliant leap of reasoning to conclude that defendant was not going to take a default here.  And defense counsel should have offered to deem the original complaint served—perhaps effective the date of the call—or perhaps have followed up.  Alas, no one did so.  Even a neophyte lawyer, but one who wanted to avoid needless motion practice, could have seen many paths to compromise of this issue.

The court expects better of counsel going forward.  The court has plenty of tools at its disposal to deal with this sort of thing in the future.  The court also ORDERS both parties to review the LA Superior Court’s Litigation Guidelines, appended to the Local Rules.  The court tends to expect compliance with them.