Judge: Sandy N. Leal, Case: 2021-01191931, Date: 2023-08-24 Tentative Ruling

Motion to Set Aside/Vacate Default and Judgment

Defendant Philippe G. Delbar, erroneously sued as Phillipe G. Delbar’s (Defendant) Motion to Set Aside Default And, If Entered, Default Judgment (Motion) is GRANTED.

Defendant moves to set aside default and entry of default judgment against him pursuant to Code of Civil Procedure section 473(b).

Code of Civil Procedure section 473(b) permits a court to grant relief from a judgment, dismissal, order or other proceeding taken against a party. A court may grant discretionary relief upon the moving party’s showing of “mistake, inadvertence, surprise or excusable neglect.” (Code Civ. Proc § 473, sub. (b); Leader v. Health Industries of Am., Inc. (2001) 89 Cal.App.4th 603, 615-616.) While a request for relief under § 473(b) is entrusted largely to the trial court's discretion, the law strongly favors an exercise of that discretion in favor of granting relief so that matters can be heard on their merits. (Shapiro v. Clark (2008) 164 Cal.App.4th 1128, 1139.)

Defendant contends that entry of default and default judgment should be set aside because Defendant’s failure to timely respond to the First Amended Complaint was due to mistake, inadvertence, surprise or excusable neglect.

Defendant submits declarations from himself and from his attorney Ricky S. Shah in support of his motion.

First, Defendant’s declaration in support of motion states: “On July 20, 2021, I submitted to the HOA a “Request for Architectural Approval” (the “Architectural Application”) for my home’s roof…[¶] On August 27, 2021, the HOA’s Board of Directors sent me a letter saying that it knew I would be repairing my roof, including my exterior wood beams at the same time and would deal with their concerns over the wood beams once the repairs were completed. [¶] I completed the repairs to my roof and the wood beams in November 2021. [¶[ The HOA has not complained about my exterior roof following these repairs…[¶]Because I had already submitted an Architectural Application and completed the repairs by November 2021, I was confused to find out that the HOA had sued me in 2023…[¶] Mr. Kim, although he called and sent me letters regularly, did not reach out to me about responding to the second lawsuit before requesting my default…[¶] When I learned about the default on the second lawsuit, I did not know how to respond but I prepared and quickly filed a Motion to Quash because I thought I should have a chance to properly respond to the litigation.” (Defendant Decl., ¶¶ 3, 6-8, 10, 12, 13.)

Second, Defendant’s attorney Mr. Shah attests that at the 5-24-23 case management conference, “Plaintiff’s counsel argued about the incorrect Motion to Quash and demanded it be struck immediately, while I reminded the Court that this was filed by my pro per client, not by my offices, and I had not even reviewed it. As I stated, we would review the motion and if inappropriate, we would withdraw it. Otherwise, we would seek to set aside the default and attempt to have this case from 2021 ready for trial setting in August.” (Shah Decl., ¶ 3.) Thereafter, Mr. Shah attests that he contacted Plaintiff’s counsel regarding the motion to quash and requesting that Plaintiff stipulate to setting aside the default. (Shah Decl., ¶ 5.) Thereafter, Plaintiff move for entry of default and would not agree to set it aside despite Defense counsel’s requests. (Shah Decl., ¶¶ 7-15.)

In Opposition, Plaintiff contends that Defendant’s motion fails to demonstrate that his failure to respond was due to mistake, inadvertence, surprise, or excusable neglect because Defendant had been in negotiations with Plaintiff regarding the subject matter of the lawsuit since 2021 and Defendant was thus well aware of the status of the lawsuit and his need to respond.

The Opposition relies on the declaration of Plaintiff’s counsel Reuben Kim (Kim). Kim attests that he was engaged in negotiations with Defendant since 2021, and these negotiations  included informing Defendant by email that he would have to respond to the original Complaint or that default would be entered. (see Kim Decl., ¶¶ 12-15, Exhibits 6-8.) These emails included confirmation from Defendant that he understood that the issue of attorney’s fees would not be resolved by submitting an application for roof replacement. (see Kim Decl., ¶ 12, Exhibit 6.)

With regard to communications with Defendant after the FAC was filed, the Kim Declaration states only the following: “On April 5, 2023, Defendant was personally served with the Summons and FAC. [¶] Defendant once again failed to file a responsive pleading to the FAC within the statutorily designated time for same. [¶] As a result, on May 9, 2023, the Association filed a Request for Entry of Default. The Court entered default against Defendant that same day.” (¶¶ 25-27.)

Plaintiff appears to argue that because Defendant was previously informed of the need to respond to the original Complaint and the fact that only the attorney’s fees issue remained outstanding, this means that Defendant should have known to respond to the FAC. However, it is undisputed that Defendant was in pro per until 6-2-23, when his current counsel appeared in the case. The fact that a pro per Defendant did not understand the need to respond to an amended Complaint is an excusable mistake or neglect, especially given that Plaintiff’s counsel does not demonstrate that he gave notice to Defendant prior to taking Defendant’s default on the FAC. An attorney has an ethical obligation to give notice prior to taking the opposing party’s default. (see Lasalle v. Vogel (2019) 36 Cal.App.5th 127, 135-137.)

Based on the above and because the law strongly favors trial on the merits, the Court exercises its under Code of Civil Procedure section 473(b) and GRANTS Defendant’s motion.

Defendant is to file his responsive pleading within 5 days of this date.

Defendant is to give notice.