Judge: Randall J. Sherman, Case: 2020-01151111, Date: 2022-11-04 Tentative Ruling

Defendants John Valente; ELV, LLC; John J. Valente, Trustee of The John J. Valente Separate Property Trust, Dated February 10, 2004; Valente Bella Industry, Inc.; Valente Hair & Company, Inc.; VE Beauty Products, Inc.; Valente, Inc.; and Perfect Palace Realty, Inc.’s Motion to Set Aside the Default is granted.  Defendants must file their proposed Answer within 10 days.

Two weeks ago, the local Court of Appeal held in Shapell SoCal Rental Properties, LLC vs. Chico’s Fas Inc. (4th Dist., Div. 3, 10/17/2022), “An attorney has both an ethical and statutory obligation to warn opposing counsel, if counsel’s identity is known, of an intent to seek a default and to give counsel a reasonable opportunity to file a responsive pleading”, citing its earlier decision in LaSalle v. Vogel (2019) 36 Cal. App. 5th 127, 135, in which the court held, “It is now well acknowledged that an attorney has an ethical obligation to warn opposing counsel that the attorney is about to take an adversary’s default.”  Both courts cited CCP §583.130: “It is the policy of the state that a plaintiff shall proceed with reasonable diligence in the prosecution of an action but that all parties shall cooperate in bringing the action to trial or other disposition.”

Defendants John Valente, ELV, LLC and Valente Bella Industry, Inc. filed a Motion to Dismiss and to Quash Service of Summons, which the court denied on March 18, 2022, ordering defendants to file an Answer within 20 days, by April 7, 2022.  Defendants attempted to file an Answer that day, but the Answer was on behalf of not only John Valente, ELV, LLC and Valente Bella Industry, Inc., but also John Valente, Trustee of the John J. Valente Separate Property Trust, dated February 10, 2004, Valente Hair & Company, Inc., VE Beauty Products, Inc., Valente, Inc. and Perfect Palace Realty, Inc.  The clerk rejected the Answer on April 8, 2022, noting, “Valente Hair Company [sic] is Defaulted.”  Plaintiff then defaulted John Valente on April 11, 2022 and defaulted ELV, LLC and Valente Bella Industry, Inc. on April 18, 2022.  These quickly-entered defaults were not the subject of any warnings by plaintiff’s counsel.  The record does not show any warnings of counsel intending to take the defaults of the defendants who did not file the Motion to Dismiss and to Quash Service of Summons, and whose defaults were entered on January 24, 2022.

Counsel for the Valente Defendants also argues that the failure to file an answer was due to a clerk’s error outside of his control, and due to his need to care for his father who suffered a heart attack, and that he relied on plaintiff not seeking a default without first warning him.

Based on all of the facts and the applicable case law, this court grants defendants’ motion to set aside their defaults.

The moving party defendants are ordered to give notice of the ruling unless notice is waived.