Judge: Richard S. Whitney, Case: 37-2022-00049837-CL-BC-CTL, Date: 2023-09-29 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - September 28, 2023

09/29/2023  10:30:00 AM  C-68 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Richard S. Whitney

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Civil - Limited  Breach of Contract/Warranty Motion Hearing (Civil) 37-2022-00049837-CL-BC-CTL 3KEYMEDIA LLC VS DIME INDUSTRIES LLC [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING: DEFENDANT DIME INDUSTIES LLC'S MOTION TO SET ASIDE DEFAULT AND FOR LEAVE TO DEFEND ACTION is GRANTED.

Defendant DIME INDUSTRIES LLC ('Defendant') seeks to set aside the default entered against it on February 16, 2023, which was requested by Plaintiff 3KEYMEDIA, LLC ('Plaintiff'). Defendant relies upon CCP sections 473(b). CCP section 473(b) provides, in part: 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. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.

(Code Civ. Proc., § 473(b).) This is the discretionary portion of the statute. CCP section 473(b) later provides: 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. The court shall, whenever relief is granted based on an attorney's affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties. However, this section shall not lengthen the time within which an action shall be brought to trial pursuant to Section 583.310.

(Code Civ. Proc., § 473(b).) This is the mandatory portion of the statute. CCP section 473 'is a remedial measure to be liberally construed, any doubts existing as to the propriety of the trial court's action will be resolved in favor of a hearing on the merits.' (Berman v. Klassman (1971) 17 Cal.App.3d 900, 910.) '[W]here there would have been no real prejudice had the set-aside motion been granted, the rule is that a party's negligence in allowing a default to be taken in the first place 'will be excused on a weak showing.'' (Lasalle v. Vogel (2019) 36 Cal.App.5th 127, 140.) Calendar No.: Event ID:  TENTATIVE RULINGS

2964331  67 CASE NUMBER: CASE TITLE:  3KEYMEDIA LLC VS DIME INDUSTRIES LLC [IMAGED]  37-2022-00049837-CL-BC-CTL Plaintiff asserts the declaration of attorney David F. Standa is insufficient.

The clause in section 473, subdivision (b) which mandates the court to grant relief unless it finds that the default was not in fact caused by lawyer error is not only a credibility testing device. It is also 'a causation testing device.' (Cisneros v. Vueve (1995) 37 Cal.App.4th 906, 912 [44 Cal.Rptr.2d 682].) The Cisneros court affirmed a trial court order denying section 473 relief because the lawyer was not representing the clients when their defaults were entered and therefore was not the proximate cause of their entry. (37 Cal.App.4th 912.) (Milton v. Perceptual Development Corp. (1997) 53 Cal.App.4th 861, 867.) Mandatory relief under CCP section 473(b) 'is not available when the error is the client's alone.' (Martin Potts & Associates, Inc. v. Corsair, LLC (2016) 244 Cal.App.4th 432, 442.) 'Because it is often unknown at the time a motion for mandatory relief is filed whether causation will be disputed, an attorney would be well served to include the reasons for his or her 'mistake, inadvertence, surprise, or neglect' in the affidavit of fault.' (Id.) 'But the fact that it may be a very good idea to include an explanation of attorney fault does not mean it is a requirement of section 473, subdivision (b)'s mandatory relief provision.' (Id.) The court in Martin Potts concluded an explanation of attorney fault is not required under CCP section 473(b). (Id.) To be sure, it is not enough for the attorney to attest, 'My client is entitled to relief under section 473, subdivision (b)'; that would be an impermissible conclusion of ultimate fact. But an attorney's admission of his mistake, inadvertence, surprise, or neglect is not an impermissible ultimate fact because it is precisely what section 473, subdivision (b) calls for-namely, a 'sworn affidavit attesting to [the attorney's] mistake, inadvertence, surprise, or neglect' (§ 473, subd. (b)).

(Id. at 442–443.) Here, Standa declares 'I was required to locate counsel in California and excusably missed the California deadline for which to respond to the Complaint and never had indication that the request for entry of default was properly served.' (Decl. Standa, ¶ 4.) 'The default was entered as a result of mistake, inadvertence, surprise and excusable neglect. Defendant's various law firms mistakenly thought the other firm was handling the matter.' (Decl. Standa, ¶ 6.) The Court finds the declaration is sufficient as Standa takes responsibility for missing the deadline and for the fact the default was entered as a result of mistake, inadvertence, surprise and excusable neglect, as required by CCP section 473(b).

While Standa also declares '[o]nce the Complaint was assigned to Defendant's litigation counsel, Greenspoon Marder LLP (this firm a.k.a. 'GM'), the response date had already lapsed,' this does not mean the default was not causally connected to Standa's failure to obtain local counsel. Even if Defendant, the client, were partially at fault for the default, 'the courts are still divided as to whether [mandatory relief under CCP section 473(b)] is available when the error lies partly at the client's feet and partly at the attorney's' feet. (Martin Potts, supra, 244 Cal.App.4th at 442.) Moreover, even if the mandatory portion of CCP section 473(b) were unavailable, the facts support relief under the discretionary portion of CCP section 473(b). There was an excusable misunderstanding that occurred. Even if the Court were to not accept that it must, under the mandatory portion of CCP section 473(b), grant relief, the Court would still exercise its discretion to grant relief under the circumstances of this case. The motion is granted.

CCP section 473(c)(1) provides: Whenever the court grants relief from a default, default judgment, or dismissal based on any of the provisions of this section, the court may do any of the following: (A) Impose a penalty of no greater than one thousand dollars ($1,000) upon an offending attorney or party.

(B) Direct that an offending attorney pay an amount no greater than one thousand dollars ($1,000) to the Calendar No.: Event ID:  TENTATIVE RULINGS

2964331  67 CASE NUMBER: CASE TITLE:  3KEYMEDIA LLC VS DIME INDUSTRIES LLC [IMAGED]  37-2022-00049837-CL-BC-CTL State Bar Client Security Fund.

(C) Grant other relief as is appropriate.

(Code Civ. Proc., § 473(c)(1).) The Court declines, at this time, to impose any penalty.

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