Judge: Martha K. Gooding, Case: 2021-01233375, Date: 2022-11-28 Tentative Ruling

Motion for Attorney Fees

The Motion for Attorney Fees brought by Cross-Complainant Alex Blank is DENIED.

On August 11, 2022, the Court granted a Motion to Set Aside Default brought by Cross-Defendant Cheryl O’Neil, finding default was entered as a result of her “inadvertence and excusable neglect.” (ROA # 150.) 

In this Motion, Cross-Complainant requests an award of attorneys’ fees pursuant to Code of Civil Procedure (“CCP”) section 473(b) and CCP section 473(c)(1), in connection with the Court’s order setting aside the default.

Pursuant to CCP section 473(b), “[t]he court shall, whenever relief is granted based on an attorney’s affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties.”  This provision is inapplicable here, however, as the August 11^th order did not arise from “attorney fault.”  Instead, the Court set aside default based on a finding the default resulted from Plaintiff’s inadvertence and excusable neglect. (ROA No. 150.)

In his Reply, Cross-Complainant mistakenly asserts that relief must have been granted under the mandatory attorney-fault provision.  This is incorrect.  Discretionary relief is available under CCP section 473(b) based on the excusable neglect of a party (as opposed to counsel.)

CCP section 473(b) “contains two distinct provisions for relief from default…one makes relief discretionary with the court; the other makes it mandatory.” (Martin Potts & Associates, Inc. v. Corsair, LLC (2016) 244 Cal.App.4^th 432, 438). “[M]andatory relief comes with a price – namely, the duty to pay ‘reasonable compensatory legal fees and costs to opposing counsel or parties.’” (Id.) “[S]ection 473, subdivision (b) makes relief mandatory only if the request for relief  ‘is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect.” (Id.)  Here, the Court did not receive a sworn affidavit from a licensed attorney and the prior motion to set aside was granted under the discretionary provision of CCP section 473(b).

Additionally, while the discretionary portion of CCP section 473(b) permits the recovery of attorneys’ fees, any such recovery is limited to what is just.  Pursuant to CCP section 473(b), “[t]he court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.”

Here, the Court previously determined that Cross-Complainant had not demonstrated prejudice in connection with setting the default aside. (ROA No. 150.)  Additionally, the Court noted that entry of default was “quiet” and “swift,” factors which increased the likelihood the default ultimately would be set aside.  Moreover, Cross-Complainant has arguably benefitted from the labor of his prior Counsel in compiling material for the Default Judgment packet, as the same offers Cross-Complainant a template for establishing the amount of his damages.

Finally, pursuant to CCP section 473(c)(1)(C), “[w]henever the court grants relief from a default, default judgment, or dismissal based on any of the provisions of this section, the court may…[g]rant other relief as is appropriate.”

Having already determined that Cross-Complainant has not established prejudice resulting from setting aside the default, the Court finds no award of fees here “appropriate.”

Defendant is ordered to give notice.