Re: Gerald Perry dba Downtown Fitness v. Gilio et al.
Superior Court Case No. 17 CECG 02356
Hearing Date: February 15, 2018 (Dept. 502)
Motion: Set Aside Entry of Default
Tentative Ruling:

To grant the motion. An Answer is to be filed within 10 days of notice of the ruling. Notice runs from the date that the Clerk serves the minute order plus 5 days for service via mail. See CCP § 1013(a).

Explanation:

Background

On July 1, 2016 Plaintiff and Defendants entered into a lease agreement for property located at 1408 N Street in Fresno, CA. The term was for two years at $3000 per month. Plaintiff invested over $100,000 in the property. He alleges that he was not informed that the building had serious electrical, water and plumbing issues. These issues caused a delay in opening his gym. He further alleges that the property has been condemned. He filed a complaint on July 13, 2017 alleging causes of action for breach of contract and fraud as well as common counts.

Copies of the summons, complaint, etc. were personally served on Mark Gilio and Teresa Gilio on July 20, 2017. See proofs of service filed on July 25, 2017. Default was requested and entered on August 25, 2017. On December 22, 2017, Defendants filed a motion to set aside default. No opposition has been filed.

Merits

CCP § 473(b) states: “(W)henever an application for relief is timely, in proper form, and accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise or neglect, (the court shall) vacate any . . . (2) resulting default judgment or dismissal entered against his or her client . . . ” See Beeman v. Burling (1990) 216 Cal.App.3d 1586, 1604; Lorenz v. Commercial Accept. Ins. Co. (1995) 40 Cal.App.4th 981, 989. 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. See Beeman v. Burling, supra; see also Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 770. The court is not concerned with the reasons for the attorney’s mistake. See Billings v. Health Plan of America (1990) 225 Cal.App.3d 250, 256. The lawyer’s negligence need not be the exclusive or sole cause of the client’s loss, so long

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as it was in fact a proximate cause. See Milton v. Perceptual Develop. Corp. (1997) 53 Cal.App.4th 861, 867.

The motion at bench is brought on the grounds that the attorney’s “mistake, inadvertence, neglect, etc.” resulted in his failure to file an Answer on behalf of his clients. See Declaration of Hrdlicka. Accordingly, relief is mandatory. See Beeman v. Burling (1990) 216 Cal.App.3d 1586, 1604. The motion will be granted.

Pursuant to California Rules of Court, Rule 3.1312, subd. (a) and Code of Civil Procedure section 1019.5, subd. (a), no further written order is necessary. The minute order adopting this tentative ruling will serve as the order of the court and service by the clerk will constitute notice of the order.

Tentative Ruling
Issued By: DSB on 02/13/18
(Judge’s initials) (Date)