Judge Michael E. Whitaker, Case Number: 23SMCV03147, Date: 2023-11-20 Tentative Ruling

Judge: Michael E. Whitaker, Case: 23SMCV03147, Date: 2023-11-20 Tentative Ruling

Defendant Naturezway, Inc. (“Defendant”) moves to set aside the default entered against it on September 11, 2023. The motion is unopposed.

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.”

Code of Civil procedure section 473 “includes a discretionary provision, which applies permissively, and a mandatory provision, which applies as of right.” (Minick v. City of Petaluma (2016) 3 Cal.App.5th 15, 25 (hereafter Minick).) [1] “Section 473 is a remedial statute to be “applied liberally” in favor of relief if the opposing party will not suffer prejudice. Because the law strongly favors trial and disposition on the merits, any doubts in applying section 473 must be resolved in favor of the party seeking relief from default. Unless inexcusable neglect is clear, the policy favoring trial on the merits prevails.” (Minick, supra, 3 Cal.App.5th at p. 24 [cleaned up].)

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.)

Default was entered against Defendant on September 11, 2023 and Defendant filed its motion to set aside the default on October 23, 2023. Therefore, the Court finds that Defendant’s motion is timely under Section 473.

Defendant seeks to set aside the default on the basis of mistake and excusable neglect. In support of the motion, Defendant advances the Declaration of Sean Solouki, principal for Defendant who states the following:

3. Around the end of July, 2023, I received the complaint from my registered agent, who is one of my attorneys, Peyman Cohan. In an email, Mr. Cohan asked me to let him know if I wanted his firm to defend the action.

4. Mr. Cohan and his law firm have been my attorneys for many years, so I overlooked the fact that he asked me this. Instead, in my mind, they would just handle the defense. I did not realize they needed additional authorization to represent Naturezway, Inc., in this matter. I thought they were handling this matter for us without any further confirmation needed.

5. After I received the notice of default, I contacted Mr. Cohan, and he reviewed the email exchanges with me. At that point, I realized he expected to be contacted and authorized to move forward with my defense if I wanted him to do it. I now understand that because I use other counsel for some matters, they could not move forward without express authorization. However, I did not think that at the time and overlooked the request for confirmation. In my mind, Mr. Cohan’s firm was handling this matter.

6. On September 18, 2023, my attorney’s paralegal sent a copy of the request for default to me, but it went into my spam folder. I did not see and did not respond to it until I discovered it on October 11, 2023 when I reviewed the spam folder before deleting. I immediately contacted Mr. Cohan’s office and they informed me they were not handling this matter because I never authorized them to do so. I asked them to take whatever action was required.

7. I did not intend to let a default be taken and I believed that the complaint was being defended by Mr. Cohan’s firm. It was inadvertent and a mistake on my part. I believed that my attorney’s firm was defending the case on behalf of Naturezway, Inc.

Based upon the declaration, the Court finds that Defendant failed to respond to the complaint, resulting in the entry of default, because of mistake and excusable neglect.

Based upon the record, and in light of the fact that the motion is unopposed, the Court finds that Defendant has set forth a factual basis for relief under Code of Civil Procedure section 473 due to mistake and excusable neglect. Accordingly, the Court grants Defendant’s motion and orders the default entered on September 11, 2023 set aside.

The Court further orders Defendant to file and serve a response to the Complaint on or before December 15, 2023. Further the Court notes that the Case Management Conference set on January 9, 2024 at 8:30 A.M. in Department 207 remains on calendar.

[1] “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 .” (Code Civ. Proc., § 473, subd. (b).) Here, the Court finds that the mandatory provisions of Section 473 do not apply as no attorney affidavit of fault was submitted with the moving papers. Therefore, the Court will consider the motion under the discretionary provisions of Section 473 only.