Judge: Michael E. Whitaker, Case: 22STCV15279, Date: 2023-01-23 Tentative Ruling

Case Number: 22STCV15279    Hearing Date: January 23, 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 Rail 2 Rail Logistics, LLC (Defendant) through its counsel, Jeffrey M. Lenkov (Counsel), moves to set aside the Clerk of Court’s entry of default on October 18, 2022.  Plaintiff Lancer Insurance Company (Plaintiff) opposes the motion.    

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, Defendant’s motion is timely.  The entry of default was made on October 18, 2022.  Defendant then filed its application for relief on December 8, 2022, before a default judgment was entered against it.

            Second, Defendant seeks to set aside the entry of default on October 18, 2022, due to the fault of Defendant’s counsel.  Defendant’s application for relief is accompanied by the declaration of Defendant’s counsel, Jeffrey M. Lenkov (Counsel), stating that he requested and obtained an extension of time to answer to the Complaint which was later withdrawn by Plaintiff after Counsel suggested that he might file a demurrer if Plaintiff did not supply additional facts about the underlying case.  (Declaration of Jeffrey M. Lenkov, ¶¶ 4-6.)  Counsel avers that by the time Counsel attempted to file an Answer, Plaintiff had already filed a Request for Entry of Default.  (Declaration of Jeffrey M. Lenkov, ¶¶ 6-7.)  Counsel concludes that he should have immediately filed an Answer when the extension was withdrawn and followed-up with a motion for judgment on the pleadings instead of waiting six days to file an Answer.  (Declaration of Jeffrey M. Lenkov, ¶ 8.)  Counsel recognizes that the default was taken as a result of his own actions and were not the fault of his client.  (Declaration of Jeffrey M. Lenkov, ¶ 9.)

            In opposition, Plaintiff argues that the subject entry of default did not actually occur because of the reasons set forth by Counsel, but rather it was the result of misfeasance, inattention and lack of cooperation of Defendant’s counsel. 

            The Court finds however finds that based on the timely request to vacate the dismissal supported by an attorney affidavit admitting to attorney fault, the Court finds Defendant’s motion to set aside the default conforms with the requirements 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).)  Thus, the Court will direct Jeffrey M. Lenkov to pay reasonable compensatory legal fees and costs to Plaintiff in the amount of $750 which represents three hours of attorney time to prepare the Request for Entry of Default, as well as draft the instant opposition, and attend the hearing at $250 per hour. 

CONCLUSION AND ORDER

            Therefore, the Court grants Defendant’s motion to set aside entry of default and orders the default entered on October 18, 2022 vacated.

            Further, the Court orders Jeffrey M. Lenkov to pay compensatory legal fees and costs in the amount of $750 to Plaintiff, by and through counsel for Plaintiff, within 30 days of notice of the Court’s orders.

Defendant shall provide notice of the Court’s ruling and file a proof of service of such.