Judge: Melvin D. Sandvig, Case: 21CHCV00316, Date: 2023-08-03 Tentative Ruling

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Case Number: 21CHCV00316    Hearing Date: January 12, 2024    Dept: F47

Dept. F47

Date: 1/12/24

Case #21CHCV00316

MOTION TO SET ASIDE & VACATE DEFAULT

Motion filed on 7/31/23.

MOVING PARTY: Defendant Oscar P. Broederlow

RESPONDING PARTY: Plaintiff Lucy Holdings, LLC

NOTICE: ok

RELIEF REQUESTED: An order setting aside the default entered against Oscar P. Broederlow.

RULING: The motion is granted as set forth below.    

On 12/24/22, Defendant Oscar P. Broederlow (Broederlow) was served, via substitute service and subsequent mailing on 12/26/22, with Plaintiff Lucy Holdings, LLC’s (Plaintiff) Second Amended Complaint.  As such, a responsive pleading was due on or around 2/4/23.  CCP 414.20 (service was complete 10 days after mailing).  On 3/7/23, default was entered against Broederlow.  On 3/9/23, Broederlow’s then counsel contacted Plaintiff’s counsel requesting that Plaintiff stipulate to setting aside the default because he had mistakenly missed the deadline to file a responsive pleading.  (Mbamalu Decl. ¶¶4-5).  Plaintiff’s counsel indicated he would only agree to set aside the default, if Broederlow responded with only an answer to the Second Amended Complaint.  (Id. ¶6; Arnold Decl. ¶8, Ex.B).  Counsel for the parties met and conferred regarding setting aside the default but did not come to an agreement.  (Mbamaulu Decl. ¶¶7-10; Martz Decl. ¶¶12-18; Arnold Decl. ¶¶9-13, Ex.C-F).

On 7/31/23, Broederlow filed and served the instant motion seeking an order setting aside the default entered against Broederlow.  Plaintiff has opposed the motion and Broederlow has filed a reply to the opposition.

Broederlow makes this motion pursuant to CCP 473(b) which provides, in relevant part:

“The 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. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken. .  .  . . . No affidavit or declaration of merits shall be required of the moving party. Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect. The 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. However, this section shall not lengthen the time within which an action shall be brought to trial pursuant to Section 583.310.”

(emphasis added)

As noted above, in his declaration filed in support of the motion, attorney Mbamalu attests that the default was entered as a result of him mistakenly missing the deadline to respond to the Second Amended Complaint.  (Mbamalu Decl. ¶5).  Since the motion/application was made on 7/31/23, less than six months after the entry of default on 3/7/23, and is accompanied by attorney Mbamalu’s declaration of fault, relief is mandatory under CCP 473(b). 

Under these circumstances, attorney Mbamalu must pay Plaintiff’s reasonable compensatory legal fees and costs.  Id.  The Court finds that the 4.5 hours purportedly spent by Plaintiff’s attorney drafting the default is excessive.  (See Arnold Decl. ¶15).  Additionally, it is not clear how the claimed $60.00 filing fee was incurred as there is not a court filing fee for the filing of a request for entry of default and Plaintiff has not provided receipt for such a cost.   Id. 

The Court finds that 2 hours were reasonably spent preparing the Request for Entry of Default form at Plaintiff’s counsel’s hourly rate of $450.  Therefore, attorney Mbamalu is ordered to pay Plaintiff $900.00.

Broederlow is ordered to separately file his answer and cross-complaint.  The Court notes that the proposed answer attached to the motion indicates that it is in response to Plaintiff’s First Amended Complaint when the Second Amended Complaint is the operative pleading.  Additionally, the proposed answer (page 2) incorrectly identifies the judicial district and courthouse as the Northwest District – Van Nuys Courthouse East.  The foregoing errors are to be corrected in the answer to be filed with court.

The Court notes that Broederlow has failed to properly tab/identify and has failed to electronically bookmark the exhibits attached to the motion.  See CRC 3.1110(f)(4).  The parties are warned that failure to comply with court rules in the future may result in matters being continued, papers not being considered and/or the imposition of sanctions.