Ambrosio v. Muneef
Case No: 18CV02704
Hearing Date: Tue Aug 27, 2019 8:30

Nature of Proceedings: Motion: Relief from Default

Faustino Ambrosio (“plaintiff) filed his complaint for disability discrimination under the Unruh Act on May 30, 2018 alleging that he visited Western & Main Street Drive In Liquor (“defendant”) prior to filing the complaint on three separate occasions and encountered construction-related barriers that prevented full and equal access to the property, specifically the lack of ADA-compliant parking.

The complaint was served on Western & Main Street Drive In Liquor on October 5, 2018 by substituted service and on Taian Muneef on October 12, 2018 by substituted service. (See Proofs of Service filed on November 5, 2018 [Western & Main Street Drive In Liquor] and November 28, 2018 [Taian Muneef].) Neither defendant filed an answer or other responsive pleading. On January 21, 2019, default was entered as requested as to each defendant.

On July 22, 2019, defendant Western & Main Street Drive In Liquor filed a motion for relief from default.[1] There is no opposition.

The court is empowered to relieve a party “upon any terms as may be just . . . from a judgment, dismissal, order, or any other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” (Code Civ. Proc., § 473 (b).)

The trial court has broad discretion to vacate the clerk’s entry of default. However, that discretion can be exercised only if the moving party establishes a proper ground for relief, the proper procedure, and within the relevant time limits. (See Cruz v. Fagor America, Inc. (2006) 146 Cal.App.4th 488, 495.) The court is empowered to relieve a party “upon any terms as may be just . . . from a judgment, dismissal, order, or any other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” (Code Civ. Proc., § 473, subd. (b).)

Relief under section 473 subdivision (b) may be based either on (1) an attorney affidavit of fault, in which case, relief is mandatory, or (2) declarations or other evidence showing “mistake, inadvertence, surprise or excusable neglect,” in which case, relief is discretionary. The present motion appears to seek relief under the mandatory provision.

Application for mandatory relief based on an attorney affidavit of fault must be made “no more than six months after entry of judgment.” (Code Civ. Proc., § 473, subd. (b).) The wording of the statute makes clear that the 6-month period runs from entry of the default judgment, not the original default. (Sugasawara v. Newland (1994) 27 Cal.App.4th 294, 297.) Here, judgment has not yet been entered. Thus, relief based on an attorney affidavit of fault remains available.

The declaration of Patrick Morris adequately supports the motion. However, the default cannot be set aside based on the present record. The statute specifies that the application for relief “shall be accompanied by a copy of the answer or other pleading proposed to be filed … otherwise the application shall not be granted …” (Code Civ. Proc. § 473, subd. (b).) A copy of the answer or other pleading proposed to be filed did not accompany the motion. As the motion may otherwise be granted, the court therefore continues this hearing to September 10, 2019 at 8:30 a.m. and directs plaintiff to file and serve a supplement his motion that contains a copy of his answer by August 27, 2019.

In granting relief based on an “attorney affidavit of fault,” the court must “direct the attorney to pay reasonable compensatory legal fees and costs” to the opposing counsel or parties. (Code Civ. Proc., § 473, subd. (b).) Absent submission from plaintiff, the court finds that $500 is a reasonable amount to compensate plaintiff’s attorney for preparing a Request for Entry of Default and a judgment packet.

Pursuant to California Rules of Court, 3.1308 (a)(1) and Santa Barbara County Superior Court Local Rule 1301, the court does not require a hearing; oral argument will be permitted only if a party notifies all other parties and the court by 4:00 p.m. (Department 2) the day before the hearing of the party’s intention to appear. This tentative ruling will become the ruling of the court if notice of intent to appear has not been given. If no hearing is held, defendant is directed to provide a proposed order and judgment for signature commensurate with this tentative, with appropriate notice to defendant pursuant to California Rules of Court rule 3.1312, which will then be entered by the court.

[1] The motion is not compliant with CRC 3.110(f)(4) [“Unless they are submitted by a self-represented party, electronic exhibits must include electronic bookmarks with links to the first page of each exhibit and with bookmark titles that identify the exhibit number or letter and briefly describe the exhibit.”] Five exhibits were attached to the motion. The court expects compliance in the future.