Case Number: KC066927    Hearing Date: October 06, 2014    Dept: J

Re: Charles Lamay, et al. v. U.S. Bank National Association, etc., et al. (KC066927)

MOTION TO SET ASIDE DEFAULT AND FOR LEAVE TO DEFEND

Moving Party: Defendant U.S. Bank National Association

Respondents: Plaintiffs Charles and Silvana Lamay

POS: Moving OK; Opposing served by regular mail contrary to CCP § 1005(c)

In this action for quiet title, Plaintiffs dispute the validity of recorded assignment of deed of trust to Defendant U.S. Bank National Association. Plaintiff commenced this action on 6/4/14, asserting a single cause of action for quiet title.

The default of Defendant U.S. Bank National Association was entered on July 22, 2014 at the request of Plaintiffs. The Case Management Conference is set for 10/6/14.

REQUEST FOR JUDICIAL NOTICE:

The court takes judicial notice of the documents recorded with the Los Angeles County Recorder’s Office, attached to Defendant’s request as Exhibits A-E. (Ev C § 452(c); Lockhart v. MVM, Inc. (2009) 175 Cal.App.4th 1452, 1460.) The court also takes judicial notice of the court records, attached to Defendant’s request as Exhibits F-G. (Ev C § 452(d).)

MOTION TO SET ASIDE DEFAULT:

Defendant U.S. Bank National Association (“US Bank” or “Defendant”) moves pursuant to CCP § 473(b) for an order setting aside its default, which was entered on July 22, 2014, and seeks leave to defend the action.

“[W]henever 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, (the court shall) vacate any (1) resulting default entered by the clerk … or (2) resulting default judgment or dismissal entered against his or her client …” (CCP § 473.) If the attorney is willing to take the blame the court must set aside the default (unless a “cover-up,” etc. is found). The client’s interests are protected and the culpable attorney avoids a potential malpractice action or disciplinary proceeding. (See Beeman v. Burling (1990) 216 Cal.App.3d 1586, 1604.) Where an “attorney affidavit of fault” is filed, there is no requirement that the attorney’s mistake, inadvertence, etc. be excusable. I.e., relief must be granted even where the default resulted from inexcusable neglect by the defendant’s attorney. (Standard Microsystems Corp. v. Winbond Electronics Corp. (2009) 179 Cal.App.4th 868, 897.) The court is not concerned with the reasons for the attorney’s mistake. (Billings v. Health Plan of America (1990) 225 Cal.App.3d 250, 256.) As long as the default resulted from attorney neglect, the attorney’s “affidavit of fault” compels relief from both the default and any resulting default judgment. (See Cisneros v. Vueve (1995) 37 Cal.App.4th 906, 909.)

The court is also empowered to relieve a party “upon any terms as may be just … from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” (CCP § 473(b).) Mistake is proper where the defendant was mistaken as to some fact material to defendant’s duty to respond. (Lieberman v. Aetna Ins. Co. (1967) 249 Cal.App.2d 515, 523-524.) “Surprise” refers to “some condition or situation in which a party … is unexpectedly placed to his injury, without any default or negligence of his own, which ordinary prudence could not have guarded against.” (Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1206.) Excusable neglect boils down to whether the moving party has shown a reasonable excuse for the default. (See Shapiro v. Clark (2008) 164 Cal.App.4th 1128, 1141–1142—rejecting “categorical statements about what can be found to constitute excusable neglect.”) If granting the relief will not prejudice the opposing party (other than losing the advantage of the default), “the original negligence in allowing the default to be taken will be excused on a weak showing.” (Aldrich v. San Fernando Valley Lumber Co. (1985) 170 Cal.App.3d 725, 740.)

“Because the law strongly favors trial and disposition on the merits, any doubts in applying section 473 must be resolved in favor of the party seeking relief from default.” (Elston v. City of Turlock (1985) 38 Cal.3d 227, 233; see Fasuyi v. Permatex, Inc. (2008) 167 Cal.App.4th 681, 696.) Where the party in default moves promptly to seek relief, and no prejudice to the opposing party will result from setting aside the default and letting the case go to trial on the merits, “very slight evidence will be required to justify a court in setting aside the default.” (Elston v. City of Turlock, supra, 38 Cal.3d at 233; Fasuyi v. Permatex, Inc., supra, 167 Cal.App.4th at 696.)

Defendant timely filed this motion on September 5, 2014, a little over a month after the default was entered on July 22, 2014.

Counsel for Defendant represent that the default and the default judgment was taken as a result of surprise, mistake and/or attorney error. Counsel attests as follows:

On July 15, 2014, counsel’s office received a referral from Wells Fargo Bank, N.A. to represent US Bank in this case. (Motion, Farrell Decl. ¶ 4.) As of July 15, 2014, counsel had no information regarding service of the Complaint. (Ibid.) Between July 15, 2014 and July 22, 2014, counsel did not contact opposing counsel to obtain information regarding service of the Complaint, nor did counsel obtain a copy of the proof of service pertaining to US Bank filed in this matter. (Id. ¶ 5.) It was not until July 25, 2014, after U.S. Bank’s default had been entered, that counsel obtained a copy of the proof of service pertaining to U.S. Bank. (Id. ¶ 6.) On July 28, 2014, counsel learned that U.S. Bank’s default had been entered on July 22, 2014. (Id. ¶ 7.)

The proof of service of the Summons and Complaint demonstrates that U.S. Bank was served by personal service on June 19, 2014. (RJN, Exh. F.) Specifically, a branch manager in Cincinnati, Ohio was personally served as an authorized agent for service.

It appears that the default in this action was entered as a result of Defendant’s mistake, inadvertence, surprise, excusable neglect, and/or attorney fault and that no prejudice to Plaintiffs will result from setting aside the default and allowing the case go to trial on the merits. Thus, the motion is granted. Defendant’s proposed Demurrer is to be filed and served today if it has not already been filed and served.