Judge Teresa A. Beaudet, Case Number: 23STCV13283, Date: 2024-03-05 Tentative Ruling

Plaintiff Nkemjika Amadi (“Plaintiff”) filed this action on June 9, 2023 against Defendant Charles R. Drew University of Medicine and Science (“Defendant”). The Complaint alleges causes of action for (1) breach of oral contract, (2) breach of implied covenant of good faith and fair dealing, (3) unjust enrichment, (4) intentional infliction of emotional distress, and (5) violation of Business and Professions Code section 17200, et seq.

On July 25, 2023, default was entered against Defendant. On October 13, 2023, default judgment was entered for Plaintiff and against Defendant.

Defendant now moves for an order to set aside the Court’s entry of default and default judgment pursuant to Code of Civil Procedure Section 473, subdivision (b). Plaintiff opposes.

As an initial matter, Defendant asserts that Plaintiff failed to serve the opposition on Defendant. The proof of service attached to the opposition states that the opposition was served on February 15, 2024 by email to “cathrine.hazany@ogletree.com.” Defendant’s counsel submits a declaration in connection with the reply, in which she states that “the Proof of Service indicates that Plaintiff served cathrine.hazany@ogletree.com. That email address is missing the second ‘e’ in my first name, Catherine not Cathrine.” (Suppl. Hazany Decl., ¶ 2.) Defendant also notes that pursuant to Code of Civil Procedure section 1010.6, subdivision (b)(3), “[b]efore first serving a represented person electronically, the person effecting service shall confirm the appropriate electronic service address for the counsel being served.” Defendant’s counsel states that “Plaintiff never reached out to verify [her] email address…” (Suppl. Hazany Decl., ¶ 2.)

Because Defendant has submitted a substantive reply brief that addresses the arguments made in Plaintiff’s opposition, the Court elects to exercise its discretion to consider the opposition.¿(Cal. Rules of Court, Rule 3.1300, subd. (d).) Defendant’s counsel states that “[o]n February 21, 2024, [she] checked the Court’s docket and saw that Plaintiff filed her Opposition on February 15, 2024,” and that Defendant’s counsel’s “office retrieved a copy of the Opposition from the Court.” (Suppl. Hazany Decl., ¶ 2.)

“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 John W. Patton, Jr., Defendant’s General Counsel and Secretary to the Board of Trustees. (Patton, Jr. Decl., ¶ 3.) In his supporting declaration, Mr. Patton, Jr. states that “[o]n June 15, 2023, I received the summons and complaint in the above-captioned matter, which was personally served on [Defendant] at its business address (where my office is located) on that day. The same day, I provided the complaint to [Defendant’s] Director, Risk Management and Campus Safety Armando A. Estrada, MS, to submit to [Defendant’s] insurance company for potential coverage evaluation and defense. Mr. Estrada interacts with our insurance company in his capacity as Director, Risk Management.” (Patton, Jr. Decl., ¶ 6.)

Mr. Patton, Jr. states in his declaration that “I mistakenly believed that [Defendant] would be assigned defense counsel and did not need to take any further action. I was not aware that the insurance company had not responded to Mr. Estrada and had not assigned counsel to defend [Defendant].” (Patton, Jr. Decl., ¶ 7.) Mr. Patton, Jr. further states that he “received no further documents regarding the case from the court or Plaintiff’s counsel, and was not contacted by either until January 31, 2024, when [he] learned that [Plaintiff] was attempting to levy [Defendant’s] bank account.” (Patton, Jr. Decl., ¶ 8.)

Defendant asserts that in light of the foregoing, it “has satisfied the requirements of Code of Civil Procedure Section 473, subd. (b).” (Mot. at p. 6:4.) Defendant also provides a copy of its proposed answer to the Complaint. (Hazany Decl., ¶ 3, Ex. 1.) In addition, Defendant asserts that “the Court entered its default judgment on October 13, 2023. This application is timely filed within the six month period from entry of default judgment.” (Mot. at p. 4:21-23.) The Court agrees that the instant motion is timely.[1]

In the opposition, Plaintiff asserts that “[t]here is no declaration from Armando A. Estrada stating that John Patton gave him the Complaint and what he did with the Complaint, whether he gave it to the Insurance Company or not.” (Opp’n at pp. 6:26-28.) However, the Court finds that Defendant has sufficiently demonstrated that the default judgment here was entered as a result of Defendant’s attorney’s mistake. As discussed, Mr. Patton, Jr., Defendant’s General Counsel, states that “I mistakenly believed that [Defendant] would be assigned defense counsel and did not need to take any further action. I was not aware that the insurance company had not responded to Mr. Estrada and had not assigned counsel to defend [Defendant].” (Patton Decl., ¶ 7.) Thus, the Court finds that relief is warranted here 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).) Here, Plaintiff requests $6,270.00 in attorney’s fees incurred due to “Defendant’s failure to file a response to the Summons and Complaint in this matter…” (Ukeje Decl., ¶ 12.) In the reply, Defendant appears to argue that sanctions should not be imposed here under Code of Civil Procedure section 128 or California Rules of Court, rule 2.30.[2] But Plaintiff seeks attorney’s fees pursuant to Code of Civil Procedure section 437, subdivision (b). As discussed, this provision provides that “[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.) The Court finds that the requested $6,270.00 in attorney’s fees is reasonable.

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

Defendant is ordered to pay Plaintiff the amount of $6,270.00 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.

[1]The Court notes that in Sugasawara v. Newland (1994) 27 Cal.App.4th 294, 296,“[t]he central question [was] whether the six-month limitation allowed by section 473 for relief based on attorney’s neglect commences at the time default is entered or when the default judgment is rendered.” The Sugasawara Court found that “[t]he plain language of section 473 makes it clear that the six-month period starts to run from the entry of judgment. In addition, section 473 requires the court to vacate the underlying default upon vacating the default judgment as a result of attorney’s mistake, inadvertence, surprise, or neglect.” (Id. at p. 295.)

[2]Pursuant to California Rules of Court, rule 2.30, subdivision (b), “[i]n addition to any other sanctions permitted by law, the court may order a person, after written notice and an opportunity to be heard, to pay reasonable monetary sanctions to the court or an aggrieved person, or both, for failure without good cause to comply with the applicable rules.” Pursuant to California Rules of Court, rule 2.30, subdivision (a), “[t]his sanctions rule applies to the rules in the California Rules of Court relating to general civil cases, unlawful detainer cases, probate proceedings, civil proceedings in the appellate division of the superior court, and small claims cases.”

NKEMJIKA AMADI, Plaintiff, vs. CHARLES R. DREW UNIVERSITY OF MEDICINE AND SCIENCE, et al., Defendants.	Case No.:	23STCV13283
	Hearing Date:	March 5, 2024
	Hearing Time:	10:00 a.m.
	[TENTATIVE] ORDER RE: CHARLES R. DREW UNIVERSITY OF MEDICINE AND SCIENCE’S MOTION FOR RELIEF FROM ENTRY OF DEFAULT AND DEFAULT JUDGMENT PURSUANT TO CCP § 473(B)

Superior Court of California

County of Los Angeles

Department 50