Judge: Upinder S. Kalra, Case: 22STCV01337, Date: 2022-08-10 Tentative Ruling

Case Number: 22STCV01337    Hearing Date: August 10, 2022    Dept: 51

Tentative Ruling

Judge Upinder S. Kalra, Department 51

HEARING DATE:   August 10, 2022                                             

CASE NAME:            J. Steed Inc., a California Corporation, dba Brooke’s Garage Doors Painting and General Contracting v. Ronald J. Nolan, aka Ron Nolan, individually and as Trustee of the Nolan Trust Dated October 27, 2008, et al.

CASE NO.:                22STCV01337

DEFENDANT’S MOTION TO SET ASIDE DEFAULT

MOVING PARTY: Defendants Ronald Nolan and Donna J. Smith-Nolan

RESPONDING PARTY(S): Plaintiff J. Steed Inc.

REQUESTED RELIEF:

1.      An order setting aside default entered on March 23, 2022, as to both Defendants Ronald Nolan and Donna Nolan

TENTATIVE RULING:

Motion to Set Aside Default is GRANTED.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

On January 12, 2022, Plaintiff J. Steed Inc., a California Corporation, dba Brooke’s Garage Doors Painting and General Contracting (“Plaintiff”) filed a complaint against Ronald J. Nolan, aka Ron Nolan, individually and as Trustee of the Nolan Trust Dated October 27, 2008, Donna J. Smith-Nolan, individually and as Trustee of the Nolan Trust Dated October 27, 2008, and Argent Mortgage Co. LLC, and Does 1 through 100 (“Defendants”). The complaint allege five causes of action based on breach of contract and account stated. The complaint alleges that Plaintiff entered an agreement with Defendants for home improvement services. However, during construction, Plaintiff alleges Defendants required Plaintiff to depart from contracted services and now Defendants owe $58,665.97.

On January 18, 2022, Plaintiff filed a First Amended Complaint.

On February 2, 2022, Defendant Donna J. Smith-Nolan, individually and as Trustee of the Nolan Trust was personally served with the Summons on Complaint and Defendant Ronald Nolan individually and as Trustee of the Nolan Trust was served by substitute service.

On March 23, 2022, Plaintiff filed two Requests for Entry of Default as to Defendant Ronald Nolan and Donna J. Smith-Nolan, which were both GRANTED.

On May 20, 2022, the current Motion to Set Aside Default was filed as to both Defendants. Plaintiff filed an Opposition on July 26, 2022. Defendants’ response was filed on August 3, 2022.

LEGAL STANDARD

CCP section 473(b) provides:

“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. . . .”   

Service:

Proofs of Service attached to the parties’ motions indicate that motions were served via email and via mail to the opposing parties.

ANALYSIS:

“Section 473(b) provides for both discretionary and mandatory relief.”  (Pagnini v. Union Bank, N.A. (2018) 28 Cal.App.5th 298, 302.) Defendants seeks relief under the mandatory provision of the statute based on his counsel’s mistake, inadvertence, surprise, or neglect. When based on an attorney affidavit of fault, the relief sought must be granted if the statutory requirements are satisfied. (Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 612.) A trial court is obligated to set aside entry of 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.’ (§ 473, subd. (b).) (Martin Potts & Assocs., Inc. v. Corsair, LLC (2016) 244 Cal. App. 4th 432, 443.)

The Motion here was filed less than 60 days after the Clerk entered default. Thus, Defendants’ motion is timely. Moreover, Defendants’ counsel declares that while he sent letter to Plaintiff’s counsel on February 21, 2022, the date in which to Answer “fell through the cracks.” (Mot. Nolan Decl. ¶¶ 2,7.) Thus, the motion meets all of the requirements for obtaining mandatory relief as to Defendants Donna J. Smith-Nolan, individually and as Trustee of the Nolan Trust, and Ronald Nolan as Trustee of the Nolan Trust. In light of the fact defendant’s relief is mandatory, Defendants’ motion is GRANTED as to these Defendants.

Mandatory relief, however, is not available to self-represented litigants even if they are attorneys. (Esther B. v City of Los Angeles (2008) 158 Cal.App.4^th 1093, 1099.) Ronald Nolan, attorney-at law, also represented himself.  Thus, the mandatory provisions of CCP § 473(b) are not available to Nolan as an individual. 

However, discretionary relief is available to Defendant. “A party seeking discretionary relief on the ground of attorney error must demonstrate that the error was excusable, since the attorney's negligence is imputed to the client.” (Huh v. Wang (2007) 158 Cal.App.4th 1406, 1419 [71 Cal.Rptr.3d 65, 74], as modified (Jan. 16, 2008). Additionally, this type of “excusable neglect” is the type that “might have been the act of a reasonably prudent person under the same circumstances.” (Id.) Plaintiff contends that the matter “falling through the cracks” is not an excusable neglect as a matter of law.

            If this was the extent of the explanation, the Court would agree.  However, there is more.  Nolan also declares on that on the same date he was served through substituted service, he sent Plaintiff’s counsel a certified letter acknowledging the lawsuit and demanding that the Mechanic’s Lien be lifted. (Mot. Nolan Decl. ¶ 2,7.) This demonstrates that he took some action and essentially thereafter was negligent in scheduling and following up, which is considered “excusable neglect.”  But there’s more to this story. 

Defendant also point out that service was effective 10 days after mailing of the Summons on Complaint per CCP § 415.20. The declaration of the process server indicates the items were mailed on February 7, 2020. 10 days thereafter is February 17 and 30 days thereafter is Saturday, March 19, 2022. The first court day thereafter is March 21, 2022. Plaintiff sought default just two days later. 

A brief review of counsel’s ethical and legal obligations appears warranted. Effective May 23, 2014, by order of the California Supreme Court, all attorneys admitted to practice law must take a civility oath, which reads, “As an officer of the court, I will strive to conduct myself at all times with dignity, courtesy, and integrity.” (California Rules of Court, rule 9.7.) Despite including this oath, the lack of civility among counsel appears to persist. In Lasalle v. Vogel (2019) 36 Cal. App. 5th 127, 135 (Lasalle), the court spoke at length on one particular disturbing behavior, which has relevance here, the practice of racing to the courthouse to obtain default.

“ ‘The quiet speed of plaintiffs' attorney in seeking a default judgment without the knowledge of defendants' counsel is not to be commended.’ [citation]. . .The State Bar Civility Guidelines deplore the conduct of an attorney who races opposing counsel to the courthouse to enter a default before a responsive pleading can be filed. (Fasuyi v. Permatex, Inc. (2008) 167 Cal.App.4th 681, 702,quoting section 15 of the California Attorney Guidelines of Civility and Professionalism (2007) (Fasuy).) Accordingly, it is now well-acknowledged that an attorney has an ethical obligation to warn opposing counsel that the attorney is about to take an adversary's default. (Id. at pp. 701-702.)”

“In that regard we heartily endorse the related admonition found in The Rutter Group practice guide, and we note the authors' emphasis on reasonable time: “Practice Pointer: If you're representing plaintiff, and have had any contact with a lawyer representing defendant, don't even attempt to get a default entered without first giving such lawyer written notice of your intent to request entry of default, and a reasonable time within which defendant's pleading must be filed to prevent your doing so.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2008) § 5:73, p. 5-19 (rev. #1, 2008) as quoted in Fasuyi, supra, 167 Cal.App.4th at p. 702, 84 Cal.Rptr.3d 351.)”

            But there is  more. On May 13, 2022, newly retained counsel for the Defendants asked Plaintiff’s counsel to stipulate to set aside the entry of default. Counsel set numerous conditions, utterly disregarding the Lasalle panels admonishment, their ethical responsibility and legal duty. The conduct of Plaintiff’s counsel here is disturbing to say the least. It mirrors the behavior the Lasalle panel explicitly prohibited. As the Lasalle panel noted, attorneys who practice “in contravention of the policy of the state [are] menacing the future of the profession.” (Lasalle,  supra, 36 Cal. App. 5th at 141.)

Conclusion:

            For the foregoing reasons, the Court decides the pending motion as follows:

Motion to Set Aside Default is GRANTED.

Answer is deemed filed.

Request for Sanctions by Plaintiff’s counsel is denied.

Moving party is to give notice.

IT IS SO ORDERED.

Dated:             August 10, 2022                      _________________________________                                                                                                                  Upinder S. Kalra

                                                                                    Judge of the Superior Court