Judge: Timothy B. Taylor, Case: 37-2022-00049675-CU-OR-CTL, Date: 2023-08-25 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - August 24, 2023

08/25/2023  01:30:00 PM  C-72 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Timothy Taylor

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Civil - Unlimited  Other Real Property Motion to Dismiss 37-2022-00049675-CU-OR-CTL ARTALE VS RANCIK [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Set Aside Default, 05/24/2023

Tentative Ruling on Motion to Set Aside Default Artale v. Rancik, Case No. 2022-49675 August 25, 2023, 1:30 p.m., Dept. 72 1. Overview and Procedural Posture.

This is a quiet title action involving plaintiff and the administrator of the estate of his late daughter.

Plaintiff alleges that although he was not identified in the deed, he and his daughter Angela* purchased the subject residential property on Mt. Aladin Road in San Diego together in 1984, and that he has lived there ever since and paid all debt service and other expenses. Angela died in 2011.** The administrator is plaintiff's grandson (Angela's son).

The complaint was filed in December of 2022. Defense counsel signed a notice and acknowledgment in February of 2023. ROA 10. When, by May of 2023 no responsive pleading had been filed, plaintiff took defendant's default. ROA 12-13.

Presently, defendant seeks to set aside the default, claiming attorney fault. ROA 19-23. Plaintiff filed opposition. ROA 28-29. The court has reviewed the papers and no further submissions are authorized in connection with this motion.

The case is also set for a continued CMC. ROA 17, 25-26.

2. Applicable Standards.

Code of Civil Procedure section 473(b) provides two distinct provisions for relief from default. Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 838. One affords discretionary relief, and the other makes relief mandatory. At issue here is the latter provision. A trial court is obligated to set aside a default 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.' Code Civ. Proc. § 473(b). The purpose of the mandatory provision is to 'relieve the innocent client of the burden of the attorney's fault, to impose the burden on the erring Calendar No.: Event ID:  TENTATIVE RULINGS

2976321  63 CASE NUMBER: CASE TITLE:  ARTALE VS RANCIK [IMAGED]  37-2022-00049675-CU-OR-CTL attorney, and to avoid precipitating more litigation in the form of malpractice suits.' Metropolitan Service Corp. v. Casa de Palms, Ltd. (1995) 31 Cal.App.4th 1481, 1487.

3. Discussion and Ruling.

A. The motion to set aside the default is granted, subject to defendant submitting his proposed answer on or before the hearing date. See Carmel, Ltd. v. Tavoussi (2009) 175 Cal.App.4th 393, 403.

Defense counsel has submitted a declaration attesting to his neglect in failing to timely file an answer.

(O'Neill Decl., ¶¶ 9-12, 24.) Thus, the requirements for mandatory relief have been met and the default entered on May 8, 2023 (ROA 13) is hereby set aside. Code Civ. Proc. § 473(b). Defendant must file and serve his answer by September 5, 2023.

B. Attorney O'Neill is directed to pay reasonable attorney's fees and costs to plaintiff's counsel in the reduced amount of $574.43 (1.5 hours at $375 per hour plus $13.93 in costs). See Even Zohar, supra, 61 Cal.4th at 839 ('To protect the opposing party, a court that grants relief based on an attorney's affidavit of fault must 'direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties.'') (quoting Code Civ. Proc. § 473(b)). The payment must be remitted by September 22, 2023.

4. CMC.

The parties should attend the hearing prepared to assist the court in setting the case for trial and scheduling other litigation benchmarks.

____________________________ *The court's use of first names of persons who shared a surname is not intended to be disrespectful, but is a device adopted by the courts of appeal for clarity. See Marriage of Smith, 225 Cal.App.3d 469, 475-76 (1990).

**Evidently probate proceedings commenced in 2018. ROA 8.

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