Judge: Teresa A. Beaudet, Case: 21STCV31575, Date: 2022-10-10 Tentative Ruling

Case Number: 21STCV31575    Hearing Date: October 10, 2022    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Background

Plaintiff Naomi Moran (“Plaintiff”) filed this action against Defendant J.K. Residential Services, Inc. (“Defendant”) on August 26, 2021. The Complaint asserts causes of action for (1) tortious and contractual breach of the warranty of habitability, (2) private nuisance, (3) negligence, (4) breach of the implied covenant of quiet enjoyment, (5) constructive eviction, and (6) violation of Civ. Code, § 1950.5 – bad faith withholding of security deposit.

On November 8, 2021, default was entered against Defendant. On April 18, 2022, the Court signed a judgment by default against Defendant, which was filed on April 19, 2022.  

Defendant now moves to set aside the default and default judgment against it, pursuant to Code of Civil Procedure section 473, subdivision (b). Plaintiff opposes.

Evidentiary Objections

The Court rules on Plaintiff’s evidentiary objections to the Declaration of Neil C. Evans as follows:

Objection 1: overruled

Objection 2: overruled

Objection 3: overruled

Discussion

Code of Civil Procedure section 473, subdivision (b) provides in pertinent 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.”

 “[B]ecause the law strongly favors trial and disposition on the merits, any doubts in applying section 473 must be resolved in favor of the party seeking relief from default.” (Elston v. City of Turlock (1985) 38 Cal.3d 227, 233 [negative treatment on other grounds].) Where the party in default moves promptly to seek relief, and no prejudice to the opposing party will result from setting aside the default, “very slight evidence will be required to justify a court in setting aside the default.” (Ibid.)

Code of Civil Procedure section 473, subdivision (b) also contains a mandatory provision: “Notwithstanding any other requirements of this section, the court shall, 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.” Under the mandatory provision, the attorney’s neglect does not need to be excusable. (Henderson v. Pacific Gas & Electric Co. (2010) 187 Cal.App.4th 215, 225.) 

Defendant submits the declaration of Neil C. Evans, an attorney employed by the Cameron Law Firm, which acts as counsel for Defendant. (Evans Decl., ¶¶ 1-2.) Mr. Evans states that Defendant’s failure to file an answer to the Complaint within the deadline was solely and exclusively the error and omission of the Cameron Law Firm and its staff attorneys, who missed and overlooked that deadline as a result of attorney mistake. (Evans Decl., ¶ 4.) This mistake was contributed to by understaffing of paralegals and clerical staff, as well as confusion created by the pendency of another lawsuit between the same parties pending in federal court. (Evans Decl., ¶ 4.) Mr. Evans also indicates that Plaintiff’s counsel and Defendant’s counsel had agreed to a stipulation to vacate the default and default judgment in April and May, 2022, but when the stipulation was submitted for filing, it was rejected. (Evans Decl., ¶¶ 6, 7, Exs. B-C.) Plaintiff’s counsel was unwilling to sign a new stipulation to overcome these problems. (Evans Decl., ¶ 8.) 

Plaintiff argues that Defendant cannot rely on the attorney fault provision of Code of Civil Procedure section 473, subdivision (b), because Defendant’s own inaction caused or contributed to the default. Plaintiff notes that “section 473 mandates relief on the basis of an attorney’s affidavit ‘unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.’” (Johnson v. Pratt & Whitney Canada, Inc. (1994) 28 Cal.App.4th 613, 622 [emphasis in original].) Plaintiff also notes that “section 473, subdivision (b) relief is available only when the attorney is solely responsible for the misconduct.” (Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1228 [emphasis in original].) But as set forth above, Defendant provides evidence that the failure to timely file an answer was solely the error of the Cameron Law Firm and its staff attorneys. (Evans Decl., ¶ 4.) In addition, as Defendant notes, Plaintiff does not cite to any evidence to contradict that the error in failing to timely file an answer was exclusively the fault of Defendant’s counsel.

Based on the foregoing, the Court finds that Defendant has shown entitlement to relief under the mandatory provision of 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.” (Code Civ. Proc., § 473, subd. (b), emphasis added.) Here, Plaintiff requests $5,515.40 in attorney’s fees and $63.35 in costs incurred in connection with Defendant’s default and the instant motion. (Rosenberger Decl., ¶¶ 11-15.) The Court finds that these amounts are reasonable. 

In addition, “[w]henever the court grants relief from a default, default judgment, or dismissal based on any of the provisions of this [Section 473], the court may do any of the following: (A) Impose a penalty of no greater than one thousand dollars ($1,000) upon an offending attorney or party. (B) Direct that an offending attorney pay an amount no greater than one thousand dollars ($1,000) to the State Bar Client Security Fund. (C) Grant other relief as is appropriate.” (Code Civ. Proc., § 473, subd. (c)(1), emphasis added.) Plaintiff asserts that “because of the one-year delay and waste of time imposed on Plaintiff and the Court, Plaintiff requests that the Court impose a penalty of $1,000.00 against Defendant and its counsel and order defense counsel to pay $1,000.00 to the State Bar Client Security Fund.” (Opp’n at p. 5:4-7.) Defendant reiterates in the reply that the parties entered into a stipulation to vacate and set aside the default and default judgment, which was ultimately rejected when Defendant attempted to file it. In light of the foregoing, the Court does not find that penalties are warranted under Code of Civil Procedure section 473, subdivision (c)(1).

Conclusion

Based on the foregoing, Defendant’s motion to vacate the default and default judgment is granted. The default and default judgment entered against Defendant is ordered set aside.

Defendant is ordered to pay Plaintiff the amount of $5,578.75 within 20 days of the date of this Order. Defendant is ordered to file its answer to the Complaint within 10 days of the date of this Order. 

Defendant is ordered to give notice of this Order.

DATED:  October 10, 2022  

            ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court