Judge: Melvin D. Sandvig, Case: 22CHCV01232, Date: 2024-03-15 Tentative Ruling

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Case Number: 22CHCV01232    Hearing Date: March 15, 2024    Dept: F47

Dept. F47

Date: 3/15/24

Case #22CHCV01232

MOTION TO SET ASIDE DEFAULT

Motion filed on 1/9/24.

MOVING PARTY: Defendants Everardo Vargas Valencia, Esq.; Everardo Vargas Valencia, A.P.C.; Law Offices of Everardo Vargas Valencia, APC

RESPONDING PARTY: Plaintiff Socorro Sanchez

NOTICE: ok

RELIEF REQUESTED: An order relieving Defendants, under the mandatory provision of CCP 473(b), from default and reinstating the answer previously filed and stricken on 8/28/23.

RULING: The motion is denied. 

SUMMARY OF FACTS & PROCEDURAL HISTORY

This action arises out of Defendants Everardo Vargas Valencia, Esq. (Mr. Valencia); Everardo Vargas Valencia, A.P.C.; Law Offices of Everardo Vargas Valencia, APC’s (Defendants) representation of Plaintiff Socorro Sanchez (Plaintiff) in a prior action.  Plaintiff alleges that Defendants committed wrongdoing by converting Plaintiff’s settlement funds from the prior action. 

On 11/23/22, Plaintiff filed this action against Defendants for: (1) Negligence, (2) Negligence Per Se, (3) Negligent Infliction of Emotional Distress, (4) Breach of Contract, (5) Recission of Retainer Agreement, (6) Unjust Enrichment, (7) Accounting, (8) Conversion and (9) Breach of Fiduciary Duty.  On 1/12/23, before Defendants appeared, Plaintiff filed a First Amended Complaint alleging the same 9 causes of action.  On 1/27/23, Plaintiff served Defendants with the First Amended Complaint and Statement of Damages by delivering the documents to Mr. Valencia.

On 7/6/23, defaults were entered against Defendants.  On 7/10/23, Mr. Valencia, on behalf of himself and “any who could be named as other Defendants” filed an answer to the First Amended Complaint.  On 8/28/23, Defendants’ answer was ordered stricken by the Court because it was filed after the defaults had been entered.  (See 8/28/23 Minute Order).  On 10/13/23, Plaintiff filed a Request for Entry of Default Judgment and supporting documents.  At the 10/18/23 Case Management Conference, Defendant represented that a hearing date for a Motion to Set Aside/Vacate Default had been reserved for 3/28/24.  (See 10/18/23 Minute Order).  On the Court’s own motion, the hearing on the motion was advanced and continued to 12/7/23.  Id.  At the Status Conference Re Default Judgment on 12/7/23, Defendant represented that he was unable to reserve a hearing date for the motion and requested additional time.  (See 12/7/23 Minute Order).  The Court advised Defendant to reserve a hearing date and bring an ex parte application to advance the reserved hearing date.  Id.

On 1/9/24, Defendants filed and served the instant Motion to Set Aside Default which seeks an order relieving Defendants, under the mandatory provision of CCP 473(b), from default and reinstating the answer previously filed and stricken on 8/28/23.  The motion was originally set for hearing on 8/13/24.  At the 1/11/24 Status Conference Re Default, the Court advanced the hearing date to 3/15/24.  (See 1/11/24 Minute Order).  On 3/4/24, Plaintiff filed and served an opposition to the motion. 

ANALYSIS

CCP 473(b) provides:

“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. However, in the case of a judgment, dismissal, order, or other proceeding determining the ownership or right to possession of real or personal property, without extending the six-month period, when a notice in writing is personally served within the State of California both upon the party against whom the judgment, dismissal, order, or other proceeding has been taken, and upon his or her attorney of record, if any, notifying that party and his or her attorney of record, if any, that the order, judgment, dismissal, or other proceeding was taken against him or her and that any rights the party has to apply for relief under the provisions of Section 473 of the Code of Civil Procedure shall expire 90 days after service of the notice, then the application shall be made within 90 days after service of the notice upon the defaulting party or his or her attorney of record, if any, whichever service shall be later. 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).

Here, the notice of motion indicates that relief is sought under the mandatory provision of CCP 473(b) based on attorney fault.  (See Motion, p.1:26-28, p.6:11-12).  Even in the discussion of discretionary relief, Defendants argue that a client may obtain relief based on an attorney’s inexcusable neglect.  (See Motion, p.5:7-22).  As such, the Court finds that the motion is based on the mandatory provision for relief in CCP 473(b). 

A motion for mandatory relief based on an attorney’s affidavit of fault must be made “no more than six months after entry of judgment,” not the underlying entry of default.  CCP 473(b); Sugasawara (1994) 27 CA4th 294-297.  Here, since no default judgment has been entered there is no time limit on a motion for relief based on an attorney affidavit of fault.  Id.  When a motion for relief is made no more than six months after entry of judgment (or at any time before judgment is entered), is in proper form, and is accompanied by an attorney’s sworn affidavit of fault, the court must vacate the default or default judgment.  CCP 473(b).  As such, whether or not Defendants are entitled to relief turns on whether the Court finds that the defaults were the result of the attorney’s, and not the Defendants’, fault and the motion is in proper form.  CCP 473(b).

Here, the clients and the attorney accepting fault for the entry of defaults are one and the same.  The Law Offices of Everardo Vargas Valencia, APC and Everardo Vargas Valencia, Esq. bring this motion for relief on behalf of Defendants Everardo Vargas Valencia, Esq.; Everardo Vargas Valencia, A.P.C.; Law Offices of Everardo Vargas Valencia, APC and the motion is supported by a declaration of fault from attorney/defendant Everardo Vargas Valencia (Mr. Valencia).  The mandatory relief provision of the statute only applies to an attorney representing a client.  Esther B. (2008) 158 CA4th 1093, 1099 (mandatory relief provision of CCP 473(b) did not apply in a case where an attorney represented herself).  Further, the purpose behind the mandatory relief provision is “to alleviate the hardship on parties who lose their day in court due solely to an inexcusable failure to act on the part of their attorneys.”  Zamora (2002) 28 C4th 249, 257. 

Here, the inexcusable failure to act was on the part of the Defendants acting through Mr. Valencia (a defendant in the case and the principle of the other defendants).  As noted above, Mr. Valencia was personally served on behalf of all of the Defendants and he had the responsibility to oversee his staff who he claims failed to calendar the due date for the answer.  (See Valencia Decl.). 

Based on the foregoing, the Court finds that the default were the result of Defendants own fault and they cannot rely in the mandatory provision of CCP 473(b) to obtain relief in this case.    

To the extent Defendants seek relief under the discretionary provision of CCP 473(b), the motion is untimely as it was filed on 1/9/24, more than six months after the defaults were entered on 7/6/23.  The Rutter Group California Practice Guide: Civil Procedure Before Trial, Ch.5-G, §5:279.  Even if Defendants could rely on the discretionary provision of CCP 473(b), they failed to act diligently after learning that the defaults had been entered and the answer filed on behalf of Defendants had been stricken.  

Mr. Valencia was aware of the situation at the 8/28/23 Case Management Conference at which he was present.  (See 8/28/23 Minute Order).  However, the instant motion seeking relief from the defaults was not filed until more than four months later on 1/9/24, despite the Court making repeated accommodations for Mr. Valencia.  (See 10/18/23 Minute Order; 12/7/23 Minute Order).  As such, if relief was available under the discretionary provision of the statute, it too would be denied. 

The Court further notes that despite the motion seemingly indicating that the email address (marcela@laweverardovalencia.com) listed for the Law Office of Everardo Vargas Valencia on the California State Bar website is inactive, that email address is still listed on the California State Bar website and in eCourt for the firm.  (See Motion, p.3:4-7).

CONCLUSION

The motion is denied.