Judge: Serena R. Murillo, Case: 20STCV39119, Date: 2022-10-17 Tentative Ruling

Case Number: 20STCV39119    Hearing Date: October 17, 2022    Dept: O

  Case Name:  Mawrence, et al. v. Queensland Manor South Cooperative, Inc., et al.

SUBJECT:                 MOTION TO SET ASDIE DEFAULT AGAINST DEFENDANT QUEENSLAND MANOR SOUTH COOPERATIVE, INC.

MOVING PARTY:   Defendant Queensland Manor South Cooperative, Inc.

RESP. PARTY:         Plaintiffs Mark Mawrence and Erika Schnicke

TENTATIVE RULING

            Defendant Queensland Manor South Cooperative, Inc.’s Motion to Set Aside Default is GRANTED.  Plaintiff’s Request for Judicial Notice GRANTED.  The entry of default is set aside, and a trial setting conference is set for ___________________.

            This case was initially assigned to the LASC “Personal Injury Hub Court.” On November 10, 2021, the then assigned PI Hub judge granted the plaintiff’s “motion for terminating sanction of rendering judgment by default against Defendant Queensland Manor South Cooperative, Inc.” under Code of Civil Procedure (CCP) §2023.30(d)(4). (Minute order of 11-10-21.)  Defendant filed a motion to set aside/vacate the entry of default which was called for hearing on August 17, 2022.  Under the procedure applicable to the cases assigned to the “PI Hub”, the case was then found to be complex and transferred to this Court. Thereafter, the Defendant’s motion to set aside/vacate the entry of default was reset for hearing before this Court. Defendant Queensland’s motion seeks threefold relief.  Defendant Queensland seeks (1) setting aside any defaults or requests for entry of default; (2) vacating the order imposing terminating sanctions and ordered 010; and (3) reinstating Queensland’s answer.

            Defendant Queensland submits an attorney affidavit of fault establishing that the order for the entry of default by the prior assigned trial court as a terminating sanction was the result of counsel’s mistake, inadvertence, or default.  The default entered against Queensland as a terminating sanction is subject to mandatory relief.  See Matera v. McLeod (2006) 145 Cal.App.4^th 44, 66-67. 

Under CCP §473(b), relief from default judgment is mandatory based on an attorney affidavit of fault, unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, or neglect.  “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.’”  Milton v. Perceptual Development Corp. (1997) 53 Cal.App.4th 861, 867.  The trial court may also deny the motion if it finds that the attorney's declaration of fault is not credible.  See Cowan v. Krayzman (2011) 196 Cal.App.4th 907, 915.

            Counsel Day submits an attorney affidavit of fault.  Day testifies that he prepared responses to Plaintiff’s 11-18-20 discovery requests, but he failed to send them to the client for approval or verification.  See Dec. of D. Day, ¶4.  Day testifies he did not have the name of a client contact person and did not take the necessary steps to obtain this information and obtain verifications.  Id. at ¶¶4-5.  Day attempted to comply with the Court’s order compelling responses by serving unverified responses on 7-29-21.  Id. at ¶6.  Day failed again to contact Queensland regarding the verifications when Plaintiff’s motion for terminating sanctions was heard on 10-10-21.  Id. at ¶7.  Day testifies he was the sole attorney assigned to the case.  Id. at ¶12. 

            Plaintiff argues Day’s declaration is not credible, because the unverified discovery responses contained substantive information that would have required Queensland’s participation.  Plaintiff’s counsel also testifies that he spoke with Queensland’s counsel regarding the discovery responses.  See Dec. A. Feit, ¶¶4-8.  Plaintiff also argues Queensland clearly knew of this action, because it filed an answer and served a 998 offer.  None of these facts directly contradict or establish the falsity of Day’s claim that he did not contact Queensland regarding the discovery or the terminating sanctions. 

            Moreover, Day states in his supplemental declaration that the unverified responses were prepared using information provided by Queensland’s insurer, Farmers Insurance Company.  See Defendant’s Sur-reply, Supp. Dec. of D. Day, ¶¶4-6.  Day also testifies he did not communicate with Queensland when he prepared the unverified initial and proposed responses to Plaintiffs’ written discovery requests.  See Defendant’s Sur-reply, Supp. Dec. of D. Day, ¶¶4-6. 

            The declaration sufficiently establishes grounds for mandatory relief from the entry of default.  Plaintiff also acknowledges that Defendant Queensland served verified responses to the subject discovery on 9-9-22.  See Opposition, Dec. of A. Feit, ¶16.  The discovery is no longer outstanding, and the purposes of discovery have been accomplished.

            Finally, “[T]he 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.”  CCP §473(b).  Rather than impose a penalty payable to the Court or to the State Bar Client Security Fund, the Court is inclined to order defense counsel to pay the Plaintiff the reasonable attorney’s fees and costs in the amount of _______________.  Counsel are to meet and confer regarding the appropriate amount of such sanction to be addressed at the hearing.