2009-00058393-CU-CO

Sunrise HOA Inc vs. Charles F Baldwin Trustee

Nature of Proceeding:     Motion for Relief from Default Judgment

Filed By:   Scherer, Clifford B.

Defendants’ motion for relief from “default judgment” pursuant to Code of Civil
Procedure §473(b) is GRANTED as follows.

Moving counsel is admonished because the notice of motion does not provide notice
of the Court’s tentative ruling system, as required by Local Rule 1.06(D).  Moving
counsel is directed to contact opposing counsel forthwith and advise him/her of Local
Rule 1.06 and the Court’s tentative ruling procedure and the manner to request a
hearing.  If moving counsel is unable to contact opposing counsel prior to
hearing, moving counsel is ordered to appear at the hearing in person or by
telephone.

Moving counsel is also admonished for failing to comply with CRC Rule 3.1110(b)(3)-
(4).

Opposing counsel is admonished for failing to comply with CRC Rule 3.1110(b)(3).

On 3/27/2013 the Court granted plaintiff’s motion to strike defendants’ answer to
complaint on the ground they could not represent the trust defendant since they are
not licensed to practice law.  Defendants subsequently moved to vacate the Court’s
ruling and to quash service of summons, both of which were denied on 5/9/2013 but
the Court gave defendants until 5/20/2013 to file and serve an appropriate answer on
behalf of the trust.  Having failed to do so, the Court thereafter entered a default
against defendants which was retroactive to 5/27/2013 and while plaintiff has
apparently submitted an application for entry of a default judgment, it appears no  judgment has yet been entered.

Defendants now move to set aside the “default judgment” on the ground that the
“dismissal” entered against them was the result of their counsel’s mistake,
inadvertence and excusable neglect.  More specifically, defendants assert that their
counsel fell ill on or about 5/15/2013 and despite retaining “contract counsel” during
the former’s illness, the latter failed to timely file and serve an appropriate answer by
the court-imposed deadline of 5/20/2013.  Moreover, defendants contend that despite
being told by “contract counsel” that an answer had been timely filed, the failure to file
a timely answer was not actually discovered until October 2013, when preparing for a
hearing in this matter which had been set for 11/7/2013.  Defendants now seek to file
the proposed answer attached to their moving papers (which was apparently filed by
the clerk on 6/3/2013).

Plaintiff opposes, arguing that its application for entry of a default judgment is already
pending and that defendants’ motion fails to establish grounds for relief pursuant to the
mandatory provisions of Code of Civil Procedure §473(b).  Among other things, plaintiff
point out that the answer which was previously submitted by the Court and is attached
to the present motion was signed by defendants’ own counsel (rather than “contract
counsel”) on 5/31/2013.  As such, plaintiff insists that the mistake or neglect to which
defendants’ counsel has attested was not the actual cause of the default against
defendants.

The Court holds that defendants have sufficiently established justification for relief
under the circumstances here.  Defendants have provided evidence of their counsel’s
illness on or about 5/15/2013 and “contract counsel” retained in the former’s absence
was supposed to submit the requisite answer by the 5/20/2013 deadline and said this
was in fact done.  It appears “contract counsel” did timely submit a responsive
pleading but the Court rejected it on 5/21/2013 because it appears to have been a
combined answer and demurrer.  It further appears that upon receipt of the Court’s
rejection of the answer/demurrer, defendants and their counsel prepared another
answer to complaint on 5/31/2013 and it was actually filed by the court clerk on
6/3/2013.

Based on the present record, this Court concludes that defendants are entitled to relief
pursuant to Code of Civil Procedure §473(b) and they should be permitted to file and
serve an answer to complaint on behalf of the defendant trust.

Defendants shall file and serve an original of the proposed answer to complaint
attached to the moving papers no later than 12/16/2013.  Although not required by
court rule or statute, defendants are directed to present a copy of this order
when the answer to complaint is presented for filing.

Finally, the Court declines to award plaintiff fees and costs under the circumstances
here because defendants did timely submit a responsive pleading by the 5/20/2013
deadline and when it was rejected, defendants submitted revised answer within two
weeks of the former’s rejection.  As a result, the fees and costs claimed to have been
incurred by plaintiff are not genuinely attributable to defendants’ counsel.  Moreover,
plaintiff has provided the Court with an insufficient basis on which to award attorney
fees since the Hansen Declaration in opposition fails to provide a breakdown of the
fees claimed have been incurred and the applicable hourly rate(s).