Judge: Stephen P. Pfahler, Case: 22CHCV00488, Date: 2023-02-01 Tentative Ruling

Case Number: 22CHCV00488    Hearing Date: February 1, 2023    Dept: F49

Dept. F-49

Date: 2-1-23

Case #22CHCV00488

SET ASIDE DEFAULT

MOVING PARTY: Defendant, T.H. Investments, LLC

RESPONDING PARTY: Plaintiff, RSG Foods, LLC, et al.

RELIEF REQUESTED

Motion to Set Aside Default

SUMMARY OF ACTION

On July 5, 2022, Plaintiffs RSG Foods, LLC, Neal Scott, and Haydee Scott, filed their complaint for breach of contract regarding a breach of a previously entered settlement agreement.

The clerk entered a default against Verizon Connect, Inc. on August 25, 2022. The court entered default judgment for $153,948.26 on December 30, 2022.

RULING: Granted.

Defendant T.H. Investments, LLC moves to set aside the defaults on grounds of attorney mistake, inadvertence, and/or excusable neglect. Plaintiffs in opposition demand payment of $4,920.26 in attorney fees should the court grant relief. Defendant in reply requests the court deny any sanctions.

Code of Civil Procedure section 473 subdivision (b) provides in part:

“The court may, upon any 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.”

“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. (Citation.) The six-month period runs from entry of default, not entry of judgment.” (Manson, Iver & York v. Black (2009) 176 Cal.App.4th 36, 42.) The clerk entered default on August 25, and the subject motion was filed on September 19, 2022, which is within 180 days of the default entry dates. The court considers this timely motion under the statutory relief provisions. (Ibid.)

“[A] trial court is obligated to set aside a default, default judgment, or dismissal if the motion for mandatory relief (1) is filed within six months of the entry of judgment, (2) ‘is in proper form,’ (3) is accompanied by the attorney affidavit of fault, and (4) demonstrates that the default or dismissal was in fact caused by the attorney's mistake, inadvertence, surprise, or neglect.’” (Martin Potts & Associates, Inc. v. Corsair, LLC (2016) 244 Cal.App.4th 432, 443.)

The declaration attorney Alan Abrams states that a medical issue led to the entry of default. The court finds the declaration supported and credible. [Declaration of Alan Abrams, Ex. A-B.] The motion is therefore granted under the mandatory standard for relief from a judgment.

The court denies the request for $$4,920.26 in attorneys fees and costs. The reason for the default was caused by a valid medical condition. Furthermore, the request is excessive, and demonstrates the unnecessary exacerbation of this dispute due at least in part to the rejection of request for a stipulation less than a month after the default, and Plaintiff then proceeding to obtain a default judgment more than three months following the filing of the motion itself.

Defendant to separately file the answer provided with the motion within 30 days of this order.

Defendant to give notice.