Judge Ronald F. Frank, Case 22TRCV00494 2023-04-06 Tentative Ruling

Judge: Ronald F. Frank, Case: 22TRCV00494, Date: 2023-04-06 Tentative Ruling

Case Number: 22TRCV00494 Hearing Date: April 6, 2023 Dept: 8

Tentative Ruling¿

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HEARING DATE: April 6, 2023¿¿

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CASE NUMBER: 22TRCV00494

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CASE NAME: 31 Horses Incorporated v. Virginia Gamble, et al.

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MOVING PARTY: Defendants, Virginia Gamble and Genevieve Cooley

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RESPONDING PARTY: Plaintiff, 31 Horses Incorporated

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TRIAL DATE: January 8, 2024

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MOTION:¿ (1) Motion to Set Aside/Vacate Entry of Default

Tentative Rulings: (1) Defendants’ Motion to Set Aside/Vacate Entry of Default is GRANTED

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I. BACKGROUND¿¿

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A. Factual¿¿

On June 21, 2022, Plaintiff, 31 Horses Incorporated filed a complaint against Defendants, Virginia Gamble, Genevieve Cooley, and DOES 1 through 1. The Complaint alleged causes of action for: (1) Failure to Pay Promissory Note; and (2) Fraud.

Defendant, Virginia Gamble, admits in her declaration that she was personally served with the summons along with the complaint on July 5, 2022. (Gamble Decl., ¶ 2.) However, she further notes that she did not understand or appreciate the requirement to file a responsive pleading within 30 days of personal service. (Gamble Decl., ¶ 3.) Defendant Gamble notes that she was served on July 5, 2022, and that Defendants sister, who is also a defendant, was served on August 3, 2022, about a month later. Defendants note that they hired counsel in September 2022 to represent both. (Gamble Decl., ¶ 4.) However, Defendants note that by this time, the Request for Default had already been signed by the clerk. Defendant Gamble notes that her sister, Genevieve Cooley, was able to timely file an answer.

Defendant, Gamble, further notes that her counsel contacted Plaintiff’s counsel’s office on September 2, 2022, to request that counsel stipulate to lift the default. (Weisskopf Decl., ¶ 2, Ex. A.) Defendant explained that after initial discussions with Plaintiff’s counsel, Defendant’s counsel again made a request to have the default lifted. (Weisskopf Decl., ¶ 4.) However, Defendant notes that Plaintiff’s counsel had not heard back from his client about the request, which is why Defendant Gamble filed this motion to vacate/set aside the default.

B. Procedural

On February 16, 2023, Defendants filed a Motion to Vacate Default. On March 22, 2023, Plaintiff filed an opposition brief. On March 28, 2023, Defendants filed a reply brief, belatedly attaching the required proposed Answer.

II. ANALYSIS¿

A. Legal Standard

Under Code of Civil Procedure, section 473, subdivision (b), an application for relief must be made no more than six months after entry of the order from which relief is sought and must be accompanied by an affidavit of fault attesting to the moving party’s mistake, inadvertence, surprise, or neglect. (Code Civ. Proc., § 473, subd. (b); English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 143.) 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, subd. (b).)¿

“It is the policy of the law to favor, wherever possible, a hearing on the merits, and appellate courts are much more disposed to affirm an order where the result is to compel a trial upon the merits than they are when the judgment by default is allowed to stand and it appears that a substantial defense could be made. Stated another way, the policy of the law is to have every litigated case tried upon its merits, and it looks with disfavor upon a party, who, regardless of the merits of the case, attempts to take advantage of the mistake, surprise, inadvertence, or neglect of his adversary.” (Weitz v. Yankosky (1966) 63 Cal.2d 849, 854–855.)¿

Code of Civil Procedure, section 473.5 permits the Court to set aside a default and default judgment when the service of a summons has not resulted in actual notice to a party in time to defend the action. ¿ Code of Civil Procedure section 473.5 requires the motion to be accompanied by an affidavit showing under oath that the party's lack of actual notice in time to defend the action was not caused by the party's avoidance of service or inexcusable neglect. ¿The notice of motion shall be served and filed within a reasonable time, but in no event exceeding the earlier of the following:¿(1) two years after entry of a default judgment against him or her; or¿¿(2) 180 days after service on him or her of a written notice that the default or default judgment has been entered.¿In addition, a copy of the proposed answer must be filed.

B. Discussion

Relief under Code of Civil Procedure section 473, subdivision (b) is mandatory when based on an attorney’s affidavit of fault; otherwise, it is discretionary. (English, 94 Cal.App.4th at 143.) Here, the lawyer did not err but rather the client did. Ms. Gamble admits she was served with the Summons and Complaint but failed to contact a lawyer or file a responsible pleading within the 30 day period stated on the face of the one-page Summons. Defendant Gamble seeks to set aside the entry of default against her. Defendant Gamble notes that she is an unsophisticated litigant never having been a party to litigation prior to this case. (Gamble Decl., ¶ 3.) She notes that when she received the summons and complaint, she did not appreciate that an answer was due in 30 days, and by the time she hired a lawyer, the default had already been entered. (Gamble Decl., ¶ 3.)

In opposition, Plaintiff argues that Defendant Gamble has failed to comply with Code of Civil Procedure section 473(b), and include Defendant’s proposed answer to the complaint. The Court also note that Defendant Gamble’s moving papers lacked to include any proposed answer, but that Defendant Gamble has attempted to do so in her reply brief. Further, Plaintiff notes that Defendant Gamble admits in her declaration that she was personally served with the summons and complaint on July 5, 2022, and that the summons expressly notes:

“You have 30 CALENDAR DAYS after this summons and legal papers are served on you to file a written response at this court and have a copy served on the plaintiff. A letter or phone call will not protect you. ….If you do not file your response on time, you may lose the case by default, and your wages, money and property maty be taken without further warning from the court. [¶] There are other legal requirements. You may want to call an attorney right away. …” (Exhibit 1 to Hall Declaration, Summons issued in this case and served on Defendant.)

Plaintiff notes that Genevieve Cooley was served on August 3, 2022, and that Defendant Gamble does not explain what steps she took during the 30 days after she was served with the complaint to prepare for the response due August 4, 2022, nor does she declare when she spoke with co-defendant Cooley after Cooley had been served.

Lastly, Plaintiff argues that pursuant to Code of Civil Procedure §473(b)(C), Defendant Gamble should be ordered to pay Plaintiff’s attorney’s fees for opposing this motion. Plaintiff asserts that it has incurred attorney’s fees in preparing this opposition and appearing at the hearing in the amount of $525, and costs and fees associated with filing in the amount of $3340.

The Legislature and published decisions have set a low bar for parties who fail to file a responsive pleading and timely seek to vacate the Clerk’s default. Here, Ms. Gamble has given a relatively poor but still acceptable excuse for her neglect in filing a responsive pleading. The lack of a proposed Answer lodged together with the motion justifies modest sanctions payable to Plaintiff, as if there had been a proposed Answer submitted with the motion counsel might well have refrained from filing an opposition.

Based on the foregoing, Ms. Gamble’s Motion to Set Aside under Code of Civil Procedure § 473(b) is GRANTED. The Court will condition the granting of the motion on two things: (1) Counsel for Ms. Gamble shall file and serve as a separate, stand-alone document her Answer to the Complaint, and (2) Ms. Gamble shall pay $500 to Plaintiff’s counsel within 30 days.

IV. CONCLUSION

For the foregoing reasons, Defendants’ Motion to Set Aside Request for Entry of Default is GRANTED. Costs and attorney’s fees in the amount of $500 are awarded to Plaintiff, payable within 30 days. All previously scheduled dates including trial and FSC to stand.

Moving party to give notice unless waived by both sides. ¿¿