Judge Ralph C. Hofer, Case Number: 24NNCV01063, Date: 2025-04-04 Tentative Ruling

Plaintiff Linda Koontz alleges that in April of 2022 plaintiff was lawfully on premises in Monrovia, a “Courtyard by Marriott” hotel and resort property, which was owned, operated, and controlled by defendants Marriott International, Inc. and Core Monrovia, LLC. Plaintiff alleges that at the time defendants negligently maintained, managed, controlled, and operated the subject premises and permitted them to exist in a dangerous condition, so that as plaintiff was walking on the subject premises, plaintiff suddenly fell and sustained serious and permanent injuries due to improperly maintained common areas, including floors, aisles, floor coverings, stairways and walkways.

Defendant in the memorandum initially seeks relief under the mandatory provisions of CCP § 473(b), but also appears to seek relief under the discretionary provision based on mistake, inadvertence, surprise or excusable neglect.

“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.”

Counsel argues that this case was originally assigned to a former partner in counsel’s law firm for handling, but that the partner left the firm in December of 2024, and that there was some confusion concerning the assignment of the case from the original assigned partner to current counsel. However, currently assigned counsel, from the same law firm, appears to concede that since the departure of previous counsel, current counsel was assigned to the case in December 2024, contacted counsel for plaintiff to discuss the matter, and appeared at a court hearing in this case on December 10, 2024, at which hearing it was made plain that both named defendants in this matter had been served long ago, and that the court was concerned that neither had appeared and no defaults had been taken. [Harwell Decl., paras. 2-5, Ex. A; Minute Order 12/10/2024].

As noted above, the Request for Entry of Default from which defendant Core Monrovia, LLC now seeks relief was not served and filed until many weeks later, on January 21, 2025. It is hard to understand how it could be considered excusable neglect on the part of current counsel, after having taken over the case, to have appeared in court on December 10, 2024, been made aware that counsel’s clients were in a position to be defaulted, but evidently chose not to protect the interests of the clients for an additional period of over five weeks.

It is generally held that relief under the discretionary provision of CCP § 473, which requires “excusable neglect” to be invoked, cannot be used to remedy attorney mistakes in connection with the discharge of such duties. The Second District in Luri v. Greenwald (2003) 107 Cal.App.4th 1119, upheld the trial court’s assessment that counsel’s failure to timely oppose a motion for summary judgment was not excusable neglect. The court in Luri noted the following conduct by an attorney which has been held not “excusable” under the discretionary provision:

-Counsel’s failure to discharge “routine professional duties”, or failure to “properly prepare for the hearing.” Generale Bank Nederland v. Eyes of the Beholder Ltd (1998) 61 Cal.App.4th 1384, 1402

-Counsel’s declaration of illness without declaration of physician or details of illness. Transit Ads, Inc. v. Tanner Motor Livery, Ltd. (1969) 270 Cal.App.2d 275, 286-87.

-Failure to file an answer or other required paper “with knowledge of the time limit and without any justifiable belief that it has been or will be extended.” 8 Witkin, Cal. Proc. Attack on Judgment in the Trial Court 173.

Here, counsel failed to file an answer with knowledge that the time limit already had expired, and without any justifiable belief that the time limit would be voluntarily extended by plaintiff’s counsel.

“Notwithstanding any other requirement of this section, the court shall, whenever an application 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 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..”

This relief is mandatory, even where the attorney’s neglect is inexcusable. Beeman v. Burling (1990) 216 Cal.App.3d 1586,1604-1605; Rodrigues v. Superior Court (2005) 127 Cal.App.4th 1027, 1036-1037.

The declaration of counsel is not ideal, but does state, “The default is not a result of Core’s conduct. The default was entered as a result of inadvertence or mistake, resulting from inner office movement of this case.” [Harwell Decl., para. 10].

The court construes this declaration as intended by counsel to take full responsibility for the consequence of counsel’s inaction in failing to timely respond to the complaint on behalf of the client.

The only question remaining under this provision is whether the resulting dismissal entered against the client was “in fact, caused by the attorney’s mistake, inadvertence, surprise or neglect.” CCP section 473(b). A trial court’s finding on the causation issue will be upheld on appeal so long as it is supported by substantial evidence. Milton v. Perceptual Development Corp. (1997, 2nd Dist.) 53 Cal.App.4th 861, 867.

It appears from the file that the default would not have been entered if it had not been for the conduct of counsel for defendants, although being made aware of the court’s concern that the clients had not appeared, in failing to file a responsive pleading on behalf of the moving client, Core, before the default was requested and entered. Had a timely responsive pleading been filed, the default would not have been entered. This situation is not a case where, for example, the client had some part in the neglect, and counsel is covering up for other wrongdoing, or where there was a reasoned strategic decision to permit default to be entered. The relief is granted under the mandatory provision.

Defendant is ORDERED to efile a copy of Defendant’s Answer of Core Monrovia, LLC to Plaintiff’s Complaint attached to the moving papers as Exhibit C this date, and the Answer will be deemed served on the current appearing parties this date.

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