Judge: Teresa A. Beaudet, Case: 22STCV34176, Date: 2023-04-24 Tentative Ruling

Case Number: 22STCV34176    Hearing Date: April 24, 2023    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Background

Plaintiff Asacrete Inc. (“Plaintiff”) filed this action against Defendants Angeles Contractor, Inc. (“Angeles”) and Elk Development 140 Highland Venture LLC (“Elk Development”). The Complaint asserts causes of action for (1) breach of written contract, (2) breach of implied covenant of good faith and fair dealing, (3) unjust enrichment, (4) mechanic’s lien foreclosure, (5) open book account, and (6) account stated.

On January 11, 2023, default was entered against Angeles.

Angeles now moves pursuant to Code of Civil Procedure section 473, subdivision (b) for an order granting relief from the default entered against it on January 11, 2023. Plaintiff opposes.

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.) 

Angeles submits the declaration of its counsel, Adam H. Meyers, in support of the motion. (Meyers Decl., ¶ 1.) Mr. Meyers states that “a copy of the complaint was served by mail on November 27, 2022, which was received by Angeles in early December of 2022, and that “when Angeles received the complaint via mail in this action, it forwarded the summons/complaint along with another newly-served matter to [Mr. Meyers’s] office.” (Meyers Decl., ¶ 3.) Mr. Meyers states that he “initially thought that Angeles had not shared a copy with [him], but in reviewing [his] records, [he] had received a different complaint at the same time, and pasted this Asacrete matter into that matter’s folder. [Mr. Meyers] did not realize it was a different case and did not create a response date for the Asacrete case in [his] calendar.” (Meyers Decl., ¶ 4.) Mr. Meyers then learned about the default from a phone conversation he had with counsel for Elk Development. (Meyers Decl., ¶ 5.)

Angeles thus asserts that its “default was caused by the mistake, inadvertence, and excusable neglect by Angeles’ counsel to correctly receive the summons and calendar a response deadline.” (Mot. at p. 6:25-26.) Angeles also provides a proposed answer to the Complaint in connection with the motion. (Meyers Decl., ¶ 18, Ex. A.)

In the opposition, Plaintiff’s counsel states that “[o]n 02/21/2023, [he] received an email from Adam Mayers [sic], Esq. from Feldman & Associates, Inc. offering $350.00 as compensatory legal fees and costs for setting aside the default, stating that Defendant, Angeles Contractor, Inc. did not file a response because ‘Angeles simply missed the complaint or that somehow it did not make it from the receptionist to where it was intended to go’.” (Ukeje Decl., ¶ 9, Ex. 1.) Plaintiff’s counsel asserts that on March 13, 2023, Angeles’s story changed and its attorney claimed “that it appears that we were provided with the complaint along with some others, and thought it was duplicative of another matter.” (Ukeje Decl., ¶ 12.) Plaintiff contends that “the failure of Defendant to timely respond to the complaint was not because of attorney’s fault.” (Opp’n at p. 8:13-14.)

But as discussed, Angeles’s counsel states in his Declaration under penalty of perjury that he “initially thought that Angeles had not shared a copy [of the summons/complaint] with [him], but in reviewing [his] records, [he] had received a different complaint at the same time, and pasted this Asacrete matter into that matter’s folder. [Angeles’s counsel] did not realize it was a different case and did not create a response date for the Asacrete case in [his] calendar.” (Meyers Decl., ¶¶ 3-4.)

Based on the foregoing, the Court finds that Angeles has shown entitlement to relief under the mandatory provision of Code of Civil Procedure section 473, subdivision (b).

As noted by Plaintiff, “[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.” (Code Civ. Proc., § 473, subd. (b), emphasis added.) Here, Plaintiff requests $7,920.00 in attorney’s fees and $49.35 in costs incurred in connection with this matter due to Angeles’s failure to respond to the Complaint. (Ukeje Decl., ¶ 13.) Plaintiff’s counsel asserts that this amount includes, inter alia, time spent on “preparing and filling the CMC Statement,” and “appearing at the CMC hearing.” (Ibid.) However, as Angeles notes, such work would be necessary even if Angeles’s default had not been entered. Thus, the Court finds that an appropriate amount for attorney’s fees in the circumstances of this case is $1,650.00.

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.) The Court does not find that the circumstances here warrant penalties against Angeles or its counsel under Code of Civtil Procedure section 473, subdivision (c)(1).

Conclusion

Based on the foregoing, Angeles’s motion to set aside default is granted. The default entered against Angeles is ordered set aside.

Angeles is ordered to pay Plaintiff the amount of $1,650.00 within 20 days of the date of this Order. Angeles is ordered to file its answer to the Complaint within 10 days of the date of this Order.  Angeles is ordered to give notice of this Order.

DATED:  April 24, 2023       

            ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court