Judge Salvatore Sirna, Case 22PSCV01610 2023-03-14 Tentative Ruling

Judge: Salvatore Sirna, Case: 22PSCV01610, Date: 2023-03-14 Tentative Ruling

Case Number: 22PSCV01610 Hearing Date: March 14, 2023 Dept: G

Defendant City of Pomona’s Motion to Set Aside Default

Respondent: Plaintiff Gerald Pardo

TENTATIVE RULING

Defendant City of Pomona’s Motion to Set Aside Default is GRANTED.

Furthermore, the court awards attorney fees and costs to Plaintiff against Defendant’s counsel of record in the amount of $1,000, payable within thirty (30) days of the issuance of this order.

BACKGROUND

This is a premises liability action. On November 10, 2021, Plaintiff Gerald Pardo was walking on Towne Avenue near San Antonio Avenue in Pomona when an allegedly uncovered utility hole caused Plaintiff to fall and suffer injury.

On November 1, 2022, Plaintiff filed a complaint against the City of Pomona (Defendant) and Does 1-50, alleging (1) negligence and (2) premises liability. On November 6, Plaintiff’s registered process server personally served Defendant through an assistant city clerk in Pomona. On January 9, 2023, default was entered against Defendant.

Subsequently on January 11, 2023, Defendant filed an answer. On February 6, Defendant also filed the present motion. A hearing on the motion is set for March 14. A case management conference and OSC Re: Failure to File Proof of Service are set for March 30.

ANALYSIS

Defendant seeks to set aside the entry of default on the grounds of defense counsel’s mistake, inadvertence, and excusable neglect. For the following reasons, the court GRANTS the motion.

Legal Standard

Whenever an application for relief from default 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, the court shall vacate any (1) resulting default entered by the clerk against his or her client 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. (Code Civ. Proc., §473, subd. (b).) “The six-month time limit for granting statutory relief is jurisdictional and the court may not consider a motion for relief made after that period has elapsed.” (Manson, Iver & York v. Black (2009) 176 Cal.App.4th 36, 42.) That “six-month period runs from entry of default, not entry of judgment.” (Id.)

Courts liberally grant motions to vacate default judgments when relief is promptly sought and the opposing party is not prejudiced as the law strongly favors resolution on the merits. (Kramer v. Traditional Escrow, Inc. (2020) 56 Cal.App.5th 13, 28.) Courts only require “slight evidence” to support vacating a default and resolve all doubts in favor of the party seeking relief. (Ibid.) However, “[t]he only occasion for the application of section 473 is where a party is unexpectedly placed in a situation to his injury without fault or negligence of his own and against which ordinary prudence could not have guarded.” (Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1206, quoting Elms v. Elms (1946) 72 Cal.App.2d 508, 513.)

Discussion

In this case, Defendant does not deny being served on November 6, 2022, and, as a result, was required to file a responsive pleading on or before December 6. (Moore Decl., ¶ 3; Peabody Decl., ¶ 3.) On December 13, Plaintiff’s counsel sent a letter to Defendant’s insurance carrier informing them that Defendant had failed to file a timely responsive pleading, extending the deadline for a response to December 27, and warning Defendant that Plaintiff would seek an entry of default if Defendant failed to respond. (Moore Decl., ¶ 4; Peabody Decl., ¶ 4.) On December 19, Defendant’s counsel was assigned to the case. (Moore Decl., ¶ 5.) On December 21, 2022, Defendant’s counsel sent a letter to Plaintiff’s counsel that acknowledged counsel’s December 13 letter and promised “[w]e will shortly be filing a responsive pleading.” (Moore Decl., ¶ 6, Ex. B.) However, Defendant’s counsel did not file a responsive pleading until January 11, 2023.

The court finds Defendant’s motion was promptly made within the six-month period after default was entered on January 9, 2023. The court also finds Defendant’s counsel has established the default was a result of counsel’s neglect. While Defendant’s counsel was not assigned to the case until December 19, 2022, counsel’s December 21 letter acknowledges the existence of the December 13 letter that included a December 27 deadline. Although Defendant’s counsel requested a deadline extension for discovery in the December 21 letter, Defendant’s counsel did not request an extension of time to file a responsive pleading. Thus, it appears Defendant’s counsel implicitly agreed to file a responsive pleading by the December 27 deadline offered by Plaintiff. While Defendant’s reply brief argues the delay was caused by Christmas and New Year’s holidays, Defendant does not explain why it took at least ten days after the holiday season concluded to file a reply. Nor did Defendant’s counsel ever request an extension of the December 27 deadline beforehand.

Thus, the court finds the neglect by Defendant’s counsel is sufficient to support vacating the default. Furthermore, the court finds vacating the default will cause little to no prejudice to Plaintiff, given Defendant’s motion came within days of Plaintiff’s request for default. Accordingly, Defendant’s motion is GRANTED.

Plaintiff also requests reasonable costs be imposed on Defendant’s counsel in the amount of $2,500. Pursuant to Code of Civil Procedure section 473, subdivision (b), “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.” Thus, Plaintiff’s request is GRANTED.

Utilizing a lodestar approach and in view of the totality of the circumstances, the court awards Plaintiff reasonable attorney fees and costs against Defendant’s counsel of record in the total reduced amount of $1,000.00 ($1,000.00 for 5 hours at $200 an hour: .5 hours preparing an entry of default, 1 hour meeting and conferring, .5 hours reviewing Defendant’s motion, 2 hours preparing an opposition, .5 hours reviewing Defendant’s reply, and .5 hours attending court.)

CONCLUSION

Based on the foregoing, the court GRANTS Defendant’s motion to set aside the entry of default. Furthermore, the court awards attorney fees and costs to Plaintiff against Defendant’s counsel of record in the amount of $1,000.00, payable within thirty (30) days of the issuance of this order.

The court notes that the clerk’s office accepted an answer from Defendant on January 11, 2023, after default was entered against Plaintiff on January 9, 2023. Accordingly, the court strikes the answer filed by Defendant on January 11, 2023. Defendant to file its answer in ten (10) days, on or before March 24, 2023.