Judge: Serena R. Murillo, Case: 20STCV39557, Date: 2023-04-14 Tentative Ruling
Case Number: 20STCV39557 Hearing Date: April 14, 2023 Dept: 29
TENTATIVE
Defendant Discovery Days Early Learning Center, Inc.’s motion to
set aside default is GRANTED. Defendant is ordered to pay monetary sanctions to
Plaintiff int eh amount of $1,000 within 30 days of this order.
Objections
Plaintiff’s Objections to Defendant’s
evidence are OVERRULED. These are not hearsay statements as they are not
offered for the truth of the matter asserted but instead are offered for the
effect on the listener, i.e., Defendant’s state of mind.
Legal Standard
Code of Civil Procedure, section 473, subdivision (b) provides
for two distinct types of relief—commonly differentiated as “discretionary” and
“mandatory”—from certain prior actions or proceedings in the trial court.
(Luri v. Greenwald (2003) 107 Cal.App.4th 1119, 1124 (Luri).)
The discretionary portion of section 473, subdivision (b)
provides: “The court may, upon 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, subd. (b).)
The mandatory portion of section 473 requires the court to,
“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.” (Code Civ.
Proc., § 473, subd. (b).) A timely mea culpa declaration by a
plaintiff’s attorney establishing that a dismissal was taken against her client
as a result of attorney mistake, inadvertence, or neglect deprives the court of
the discretion to deny relief. (Tackett v. City of Huntington Beach
(1994) 22 Cal.App.4th 60, 65.)
Discussion
Defendant moves to set aside the entry of
default on the grounds that Defendant’s CEO believed that the responsive
pleading that was filed in a related worker’s compensation case (ADJ12143958)
was the same as filing an Answer in this case. It was not until Defendant
received the notice of entry of default in this case and sought counsel’s
advice, that it realized a separate Answer was required in this civil case. The
failure to file the Answer on time in this case was due to the
inadvertence/mistake of Defendant’s CEO, who believed that a responsive
pleading was not necessary.
First, Default was
entered against Defendant on April 28, 2022. Defendant filed the subject
motion on September 26, 2022, which was within six months of entry of default,
and thus, the subject motion is timely. (See Code Civ. Proc., § 473,
subdivision (b).)
Second, Defendant
also filed a copy of its proposed Answer, as Exhibit 1 to the Motion to Set
Aside Default, as is required to seek discretionary relief under section 473,
subdivision (b). (See Code Civ. Proc., § 473, subd.
(b).)
Next, the Court notes that Defendant seeks relief under the
discretionary portion of section 473, subdivision (b), as it does not attribute
fault to its attorney, and therefore cannot move under the mandatory prong. The
Court finds that Defendant has made a sufficient showing of mistake,
inadvertence, or neglect in that it believed it did not need to file an answer
in this matter due to the answer it filed in the Workers’ Compensation matter. “[I]t
is the policy of the law to bring about a trial on the merits whenever
possible, so that any doubts which may exist should be resolved in favor of the
application, to the end of securing to a litigant his day in court and a trial
upon the merits.” (Frank E. Beckett Co. v. Bobbitt (1960) 180
Cal.App.2d Supp. 921, 928 (Bobbitt).) “Even in a case where the
showing under section 473 is not strong, or where there is any doubt as to
setting aside of a default, such doubt should be resolved in favor of the
application.” (Ibid., quoting Van Dyke v. MacMillan (1958)
162 Cal.App.2d 594, 598, italics in Bobbitt.) “[D]uring the period
when relief under section 473 is available, there is a strong public policy in
favor of granting relief and allowing the requesting party his or her day in
court.” (In re Marriage of Stevenot (1984) 154 Cal.App.3d 1051,
1071 (Stevenot).)
Plaintiff does not
present any argument regarding any prejudice or demonstrate that it would
suffer any prejudice if the court were to grant the requested
relief.
Given the strong
public policy that favors resolving disputes on their merits, the court finds
it appropriate to GRANT the motion under the discretionary portion of section
473, subdivision (b) and to SET ASIDE the April 28, 2022 default entered
against Defendant Discovery Days. (See Bobbit, supra, 180
Cal.App.2d Supp. at p. 928.)
Monetary Sanctions
Under section 473, subdivision (b), the court may relieve a
party from default “upon any terms as may be just.” (Code Civ. Proc., §
473, subd. (b).) “The court may properly order payment of costs or
attorney fees to the adverse party as compensation for loss or expense
occasioned by the granting of the section 473 motion.” (Jade K. v.
Viguri (1989) 210 Cal.App.3d 1459, 1474 (Jade K.).)
Plaintiff requests that the court require Defendant to
compensate it for the attorney’s fees incurred in obtaining default judgment.
The court finds it just and appropriate to require Defendant
to compensate Plaintiff for the fees incurred in connection with the entry of
default, request for default judgment, and the subject motion. As such,
Defendant is ordered to pay Plaintiff monetary sanctions in the amount of $1,000
within 30 days of this order.
Conclusion
Accordingly, Defendant’s motion to set aside default is GRANTED. Defendant is
ordered to pay monetary sanctions to Plaintiff int eh amount of $1,000 within
30 days of this order.
Moving party is ordered to give notice.