2016-00193438-CU-BC

Michael Scallin vs. Tom Blum

Nature of Proceeding: Motion for Relief from Entry of Default

Filed By: Van Doren, John

Defendants Tom Blum and Diane Blum’s (“the Blums”) motion for relief from entry of default is granted.

This is a landlord tenant dispute. On January 3, 2018, defendant/cross-complainant Realty Roundup, Inc. (“RR”) filed and served a cross-complaint against the Blums. (Van Doren Decl. ¶2.) The parties’ attorneys did not communicate until February 27, 2018, when RR sent a settlement letter to the Blums’ counsel, John Van Doren, which noted that the cross-complaint was filed and served on January 3, 2018, but the Blums had not filed any responsive pleading. (Id. ¶3.) On March 16, RR filed a Request for Default with the Court and mailed a courtesy copy to Mr. Van Doren. (Shoff Decl. ¶7, Ex. A.) On March 20, Mr. Van Doren received an email from RR’s counsel stating that they had filed for a request for default, at which time Mr. Van Doren discovered that default had been entered on the Court’s website. (Reply Van Doren Decl. ¶¶5-6.) The Court notes that Mr. Van Doren’s original declaration stated that the email was received and the Answer filed on March 19, but that he submits a declaration on reply correcting that date to March 20. On March 20 Mr. Van Doren also filed his Answer to the Cross-Complaint. (Reply Van Doren Decl. ¶5, Ex. A.) Mr. Van Doren also requested that RR’s counsel set the default aside, but they did not agree to do so. (Id. ¶7.) Mr. Van Doren attests that “[i]t was due to my inadvertence and mistake that I failed to file the responsive pleading.” (Id. ¶4.)

The Blums now move to set aside the default under CCP §473(b), on the grounds of mistake and inadvertence.

RR opposes the motion, arguing that Mr. Van Doren’s conclusory declaration is insufficient to support his request for relief, and that he has not shown mistake or inadvertence.

CCP § 473 is to be liberally applied where the party in default moves promptly to seek relief, and the party opposing the motion will not suffer prejudice if relief is granted. (Berri v Rogero (1914) 168 Cal. 736.) In such situations, “very slight evidence will be required to justify a court in setting aside the default.” (Id, at p. 740.) Because the law strongly favors trial and disposition of cases on the merits, any doubts in applying section 473 must be resolved in favor of the party seeking relief from default. (Waite v. Southern Pacific Co. (1923) 192 Cal. 467.)

Further, Courts are inclined to grant CCP 473(b) motions to set aside defaults where the defendants are represented by counsel and plaintiff’s counsel is aware of such representation and seeks a default without warning counsel. (Fasuyi v. Permatex, Inc. (2008) 167 Cal.App.4th 681, 701.)

The motion is supported by Blums’ counsel’s declaration “attesting to his…mistake, inadvertence, surprise, or neglect.” (CCP § 473(b).) Mr. Van Doren attests that RR’s counsel noted that he had not filed a responsive pleading in a letter, but the letter “did not contain any meet and confer terms as to if or when a default would be taken.” (Van Doren Decl. ¶3.) Mr. Van Doren further attests that “[i]t was due to my inadvertence and mistake that I failed to file the responsive pleading.” (Id. ¶4.) Relief is mandatory.

There is no requirement that counsel’s mistake, inadvertence, surprise, or neglect be excusable to obtain mandatory relief.

The motion is accordingly granted. The Blums shall file and served the proposed answer no later than June 1, 2018.

Section 473(b) further provides that 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. Here, RR’s attorney provides evidence that he has incurred $1718.75 in attorney fees and costs preparing the default and opposing the motion at an hourly rate of $275. (Shoff Decl. ¶¶9-10.) The Court declines to award the $206.25 spent drafting the request for default and cover letter to Mr. Van Doren. (Id. ¶9.) The Court also declines to award $275 for anticipated oral argument. (Id. ¶10.) The Court in its discretion will award $900 for 4.5 hours of work on the opposition at the reasonable hourly rate of $200. (Id. ¶9.)

If Mr. Van Doren fails to pay the sanction by such date, then RR may lodge for the Court’s signature a formal order awarding sanctions, which may be enforced as a separate judgment. (See Newland v. Superior Court (1995) 40 Cal.App.4th 608, 615.)

RR’s request for judicial notice is granted.