Judge: Michael Shultz, Case: 18CMCV00032, Date: 2022-08-30 Tentative Ruling
INSTRUCTIONS: If the parties wish to submit on the tentative ruling and avoid a court appearance on the matter, the moving party must:
1. Contact the opposing party and all other parties who have appeared in the action and confirm that each will submit on the tentative ruling.
2. No later than 4:00 p.m. on the court day before the hearing, call the Courtroom (310-761-4302) advising that all parties will submit on the tentative ruling and waive hearing; and
3. Serve notice of the Court's ruling on all parties entitled to receive service.
If this procedure is followed, when the case is called the Court will enter its ruling on the motion in accordance with its tentative ruling. If any party declines to submit on the tentative ruling, then no telephone call is necessary, and all parties should appear at the hearing. If there is neither a telephone call nor an appearance, then the matter may either be taken off calendar or ruled on.
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Case Number: 18CMCV00032 Hearing Date: August 30, 2022 Dept: A
18CMCV00032
[TENTATIVE] ORDER
I.
BACKGROUND
The complaint, filed on October
31, 2018, seeks an order to partition real property in which the parties each
have an undivided one-third interest. Plaintiff seeks recovery of funds he expended
to maintain, preserve, and improve the property for the benefit of all parties.
Plaintiff alleges claims for partition, for an accounting, partnership dissolution,
constructive trust, breach of fiduciary duty, and waste.
On March 4, 2019, Defendants filed
a cross-complaint against Roland Leon for breach of fiduciary duty, accounting
and for declaratory relief. On February 7, 2022, the court entered default against
Cross-Defendant/Plaintiff Roland Leon.
II.
ARGUMENTS
A.
Motion filed August 3, 2022
Cross-Defendant seeks mandatory
relief from the February 7, 2022, entry of default against him based on
counsel’s affidavit of fault. Cross-Defendant’s counsel, Gabriel Espinosa, relied
on the fact that this action was stayed pursuant to the stipulation to
arbitration, Cross-Defendant submitted his answer to the cross-complaint in the
AAA arbitration case, and prior to Cross-Complainant’s former counsel’s
suspension and passing, Ms. Espinosa had been in regular communication to
resolve the matter. New counsel for Cross-Complainants, Virginia L. Marsh,
sought entry of default without warning and refused to stipulate to set aside
the default.
B.
Opposition filed August 2, 2022
Cross-Complainants argue that Ms.
Espinosa did not establish that entry of default was due to counsel’s mistake,
inadvertence, surprise, or neglect. Cross-Defendant has engaged in a pattern of
“abject disregard” for these proceedings.
The cross-complaint was served in
March of 2021, and the parties did not stipulate to arbitration until November
of 2021. In the interim, Cross-Defendant did not file an answer. Ms. Espinosa
knew the stay was lifted on December 2, 2021, but does not explain why an
answer was not filed at that point.
The court’s file does not reflect
that Cross-Defendant filed a reply brief.
III.
DISCUSSION
Mandatory relief from default is
permitted if the motion is accompanied by an attorney’s affidavit attesting to
his or her mistake, inadvertence, surprise, or neglect and the motion is made
no more than six months after entry of judgment “unless the court finds that
the default or dismissal was not in fact caused by the attorney's mistake,
inadvertence, surprise, or neglect." Sugasawara v. Newland (1994) 27
Cal. App. 4th 294, 297, Code Civ. Proc., § 473(b). Judgment has not been
entered on the cross-complaint; therefore, the motion is timely made.
Cross-Defendant’s counsel, Ms.
Espinosa, assumed that Plaintiff’s answer to the cross-complaint, submitted in
the AAA case, was sufficient considering the parties’ continued settlement
discussions. Espinosa declaration, ¶ 12. While Ms. Marsh criticizes the delay
since Cross-Defendant was served with the Cross-Complaint, mandatory
relief under section 473 must be granted “regardless of whether the attorney's
neglect is excusable.” Cisneros v. Vueve (1995) 37 Cal. App. 4th
906, 909.
Ms. Espinosa also declares that Cross-Complainant’s
counsel obtained entry of default without notifying Ms. Espinosa beforehand or
discussing any of these issues. Espinosa declaration, ¶ 8. By taking a default
without giving notice, “counsel took the risk that the trial court would grant
relief from the default (Pearson v. Continental Airlines (1970) 11 Cal.App.3d
613).” Bellm
v. Bellia (1984) 150 Cal.App.3d 1036, 1038.
IV.
CONCLUSION
Section 473 is to be liberally construed;
sound policy favors the determination of actions on their merits." Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 256. Accordingly, Cross-Defendant’s
Motion is GRANTED. The court vacates the default entered on February 7, 2022.
Cross-Defendant is ordered to file its answer to the cross-complaint forthwith.