Judge: Michael E. Whitaker, Case: 21STCV00267, Date: 2023-04-21 Tentative Ruling

Case Number: 21STCV00267    Hearing Date: April 21, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTION

              Defendant City of Los Angeles (City) through its counsel, moves to set aside the default entered on August 3, 2022.  Plaintiff Sherry Antonio (Plaintiff) opposes the motion.  City replies.

ANALYSIS

Per Code of Civil Procedure section 473, subdivision (b), a court may “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.” In addition, a court must vacate a default or dismissal when a motion for relief under Section 473, subdivision (b) is filed timely and accompanied by an attorney’s sworn affidavit attesting to the attorney’s mistake, inadvertence, surprise or neglect “unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise or neglect.”  (Code Civ. Proc., § 473, subd. (b).)  

The party or the legal representative must seek such relief “within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (Code Civ. Proc., § 473, subd. (b); see Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980 [“because more than six months had elapsed from the entry of default, and hence relief under section 473 was unavailable”]; People v. The North River Ins. Co. (2011) 200 Ca.App.4^th 712, 721 [motion for relief under section 473 must be brought “within a reasonable time, in no case exceeding six months”]).  “The six-month limit is mandatory; a court has no authority to grant relief under section 473, subdivision (b), unless an application is made within the six-month period.”  (Arambula v. Union Carbide Corp. (2005) 128 Cal.App.4th 333, 340, citations omitted.) 

            First, City’s motion is timely.  The entry of default was made on August 3, 2022.  City then filed its application for relief on February 16, 2023, before a default judgment was entered against it.

            Second, City seeks to set aside the entry of default on August 3, 2022, due to the fault of City’s counsel.  City’s application for relief is accompanied by the declarations of City’s counsel. Margaret Shikibu (Counsel) explains that new complaints and summons received by the General Litigation Division in the Los Angeles City Attorney’s Office are initially logged by support staff, who then set up an electronic file for each case in CityLaw, the case management software used by the Office of the City Attorney.  (Declaration of Margaret Shikibu, ¶ 4.)  Counsel states that the Summons and Complaint for the underlying case here were never entered into either the 2021 or 2022 log of incoming cases due to what appears to be clerical inadvertence and error.  (Declaration of Margaret, Shikibu, ¶ 5.)  Counsel avers that she did not learn of this matter until January of 2023.  (Declaration of Margaret Shikibu, ¶ 6.)  After learning of this case Counsel attempted to file an opposition to Plaintiff’s previous motion to set aside dismissal, and further file with the Court a stipulation between parties to set aside entry of default which was ultimately rejected by the Court.  (Declaration of Margaret Shikibu, ¶¶ 7-13.)  Counsel then reserved the earliest hearing date for a motion to set aside default and/or default judgment on February 7, 2023.  (Declaration of Margaret Shikibu, ¶ 14.)  City also advances the declaration of counsel for City, Anthony M. Miera, who attests to the stress the General Litigation Department of the Los Angeles City Attorney’s Office has faced in the past year or so due to retirements, death, resignations, and leaves of absence.  (Declaration of Anthony M. Miera.)

            In opposition, Plaintiff argues that City’s request for relief is untimely because it did not file its application for relief within six months of the Entry of Default.  Plaintiff’s contention however is incorrect.  City’s motion for mandatory relief is timely because the Court has not entered a default judgment against City in the action.  The entry of a default judgment triggers the limitations period from which a party may seek mandatory relief under Section 473.  (See, e.g., Sugasawara v. Newland (1994) 27 Cal.App.4th 294 [six-month limitation period for relief from default based on attorney's neglect commences at time default judgment is rendered, rather than earlier when default is entered].)

            The Court thus finds that based on the timely request to vacate the default supported by an attorney affidavit admitting to attorney fault, City’s motion to set aside the default conforms with the requirements under Code of Civil Procedure section 473, subdivision (b).

            Further in her opposition, Plaintiff argues in the alternative that the Court should award Plaintiff sanctions if it grants City’s motion to set aside default based on attorney fault.  In reply, City argues the imposition of sanctions is inappropriate here based on Plaintiff’s choice to oppose City’s motion after previously entering into a joint stipulation to set aside the default.  City further contends that there are no statutes providing for attorney’s fees applicable here. 

            However, under Code of Civil Procedure section 473, subdivision (b), whenever relief is granted on an attorney’s affidavit of fault, the Court shall “direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties.”  (Code Civ. Proc., §¿473, subd. (b); see also Rodriguez v. Brill (2015) 234 Cal.App.4th 715, 734 [“Whenever relief is granted based on an attorney's declaration or affidavit of fault, the trial court is required by section 473(b) to ‘direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties’ ”].)  Thus, the Court will direct the Los Angeles City Attorney’s Office to pay reasonable compensatory legal fees and costs to Plaintiff in the amount of $1,000 which represents one hour of attorney time to prepare the Request for Entry of Default, as well as three hours of attorney time to draft the opposition papers and attend the hearing at $250 per hour. 

CONCLUSION AND ORDER

            Therefore, the Court grants City’s motion to set aside entry of default and orders the default entered on August 3, 2022 vacated.   As such, the Court orders City to file and serve a response to the complaint on or before May 12, 2023.

            Further, the Court orders the Los Angeles City Attorney’s Office to pay compensatory legal fees and costs in the amount of $1,000 to Plaintiff, by and through counsel for Plaintiff, on or before May 12, 2023.

            Further, based upon the Court vacating the default, the Court discharges the Order to Show Cause set for hearing on April 21, 2023, and orders as follows:

·       The trial date is scheduled for February 5, 2024 at 8:30 A.M. in Department 32.

·       The Final Status Conference is scheduled for January 22, 2024 at 10:00 A.M. in Department 32.

·       All discovery and pre-trial motion cut-off dates shall be based upon the trial date of February 5, 2024.

·       Per the Discovery Act, the parties shall meet and confer forthwith to schedule and complete all non-expert discovery and to prepare for the completion of expert discovery to obviate the need for a further continuance of the trial. 

The Clerk of the Court shall provide notice of the Court’s orders.