19-CIV-02847 BAY BUILDERS AND REMODELING, INC. VS. DANIEL TILE, INC., ET AL.

BAY BUILDERS AND REMODELING, INC. DANIEL TILE, INC.
BRIAN S. CASE STEVEN A. SOBEL

THE MOTION OF DEFENDANT DANIEL TILE, INC. TO SET ASIDE DEFAULT PURSUANT TO CCP § 473(B) TENTATIVE RULING:

The Motion of Defendant Daniel Tile, Inc. (“Defendant”) to set aside default pursuant to CCP § 473(b) is GRANTED. Defendant shall file its proposed answer within 5 days of this order.

Based on the facts as set forth in Mr. Sobel’s declaration, it is questionable whether Defendant or its counsel exercised reasonable diligence in responding to the complaint. Furthermore, Mr. Sobel’s declaration does not support mandatory relief under CCP § 473(b) since his declaration fails to establish that he represented Defendant at the time default was entered. Rogalski v. Nabers Cadillac, 11 Cal. App. 4th 816, 821, 14 Cal. Rptr. 2d 286, 289 n.5 (1992). The court finds, however, that Plaintiff will not be prejudiced by setting aside the default. As a general rule, the Court favors resolving cases on their merits, and when in doubt, favors setting aside defaults to achieve that goal. Elston v. City of Turlock (1985) 38 Cal.3d 227, 233.

Plaintiff’s request for an order requiring that Defendant Daniel Tile, Inc. pay Plaintiff its attorney’s fees and costs in the amount of $2,507.50 is GRANTED pursuant to CCP § 473, which allows this Court to grant relief “upon any terms as may be just.” There is no indication that Defendant or its counsel attempted to contact Plaintiff regarding the default until approximately seven weeks after default was entered. Given Defendant’s delay in seeking to set aside the default, it would be “just” to require Defendant to reimburse Plaintiff for its costs and fees in preparing and filing the default judgment application.

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for Defendant shall prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and provide written notice of the ruling to all parties who have appeared in the action, as required by law and the California Rules of Court.