Boyajian v. Harms, 18CV-0792, formerly 18LCP-0104
Hearing: Motion to Set Aside Default
Date: September 18, 2019

Background.
On February 20, 2018, Michael J. Boyajian dba Law Offices of Michael J. Boyajian (Plaintiff)
filed a lawsuit against David A. Harms and Jolene Harms (Defendants) asserting causes of action
for (1) breach of written contract, (2) common count, (3) account stated, and (4) promise made
without intention to perform (i.e., fraud). Plaintiff, an attorney, formerly represented Defendants in the lawsuit captioned Frank Macciola, et al. v. David Harms and Jolene Harms (17CVP-
0260) (the Macciola Action). Defendants are currently unrepresented in the Macciola Action, which remains pending before this Court.

On March 23, 2018, Defendants submitted a request to arbitrate their fee dispute with Plaintiff to the San Luis Obispo County Bar Association’s Fee Arbitration Program, requesting a non-
binding arbitration (the Arbitration). This Court entered an order staying the case on April 5,

2018, ruling that all proceedings in this case would be temporarily delayed until an arbitrator
reached a decision and made a final award. On November 20, 2018, Arbitrator James M.
Duenow issued his Findings and Award, awarding Plaintiff $4,230. (Ibid.)

On March 18, 2019, this Court lifted the stay and allowed Plaintiff to file an amended complaint.
Plaintiff had already filed his amended complaint on March 15, 2019.

On April 11, 2019, Defendants filed a “motion to quash and/or strike the complaint or dismiss
the case.” Among Defendants’ contentions in that motion included that they had yet to receive a
copy of Plaintiff’s amended complaint. On May 1, 2019, the Court denied Defendants’ motion,
and requested that Plaintiff provide a copy of the amended complaint at the hearing.
On May 17, 2019, Plaintiff filed Exhibit A to the amended complaint, evidencing the contract
between Plaintiff and Defendants that forms the basis of this lawsuit.

By July 16, 2019, Defendants had not filed an answer to Plaintiff’s amended complaint.
Accordingly, on this date Plaintiff requested, and obtained, a default against both Defendants for
their failure to respond to the amended complaint.

Now before the Court is Defendants’ motion to set aside the default and default judgment.

Analysis.
Defendants first argue that the default was improperly entered during the 30-day automatic stay
under Code of Civil Procedure section 430.41. Under this section, a party seeking to demur must

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first meet and confer with the opposing party in an attempt to reach an agreement that would
resolve the objections to the pleading, thereby obviating the need for a demurrer. (Code Civ.
Proc., § 430.41(a).) If the parties are unable to meet and confer by the deadline (five days before
the deadline to file a demurrer), the demurring party is granted an automatic 30-day extension of
time to file a responsive pleading. (Code Civ. Proc., § 430.41(a)(2).) To obtain this extension, the
party must file and serve a declaration on or before the date the responsive pleading is due that
states that a good faith attempt to meet and confer was made and explaining why the parties
could not meet and confer. (Ibid.)

On July 11, 2019, Defendant Mrs. Harms filed a declaration of demurring party in support of
automatic extension as outlined above. The default was entered five days later. Thus, Defendants
argue the default was improperly entered during the 30-day extended period.
While Mrs. Harms’ declaration indicates she did not reach an agreement with Plaintiff on the
subject of Defendants’ proposed demurrer, it does not state that the parties were unable to meet
and confer at all, as is required. Disagreeing about the subject matter of a demurrer is not the
same as an inability to meet and confer at all. In any event, inasmuch as there are proposed
answers from both Defendants submitted in conjunction with this motion (see Mtn., pp. 39-49),
Defendants’ arguments concerning any proposed demurrer is moot, as Defendants indicate they
will not challenge Plaintiff’s amended complaint.

Defendants next argue that the defaults should be set aside under Code of Civil Procedure
section 473(b).) Under this section, within six months after entry of a default, a defendant may
seek discretionary relief on the grounds of “mistake, inadvertence, surprise, or excusable
neglect.” (Weil & Brown, Cal. Prac. Guide: Civ. Proc. Before Trial (The Rutter Group 2019)
Ch. 5-G, § 5:327, citing Shapiro v. Clark (2008) 164 Cal.App.4th 1128, 1141-1142.) Code of
Civil Procedure, section 473 requires the motion “be accompanied by a copy of the answer or
other pleading proposed to be filed therein, otherwise the application shall not be granted ….” As
noted, Defendants include two proposed answers (one from each Defendant) with the instant
motion.

A party shows “excusable neglect” by demonstrating a reasonable excuse for the default.
(Shapiro v. Clark, supra, 164 Cal.App.4th at pp. 1141-1142.) Defendants argue that they
mistakenly assumed that their deadline to respond to the amended complaint would be extended

under Code of Civil Procedure section 430.41(a)(2), given Mrs. Harms’ filing of the above-
mentioned declaration.

Plaintiff opposes this motion, arguing that Defendants have not demonstrated they are entitled to
the discretionary relief outlined in Code of Civil Procedure section 473(b).) Plaintiff attaches
various correspondence with Defendants wherein he notifies them that he will request default be
taken if they do not file an answer or other responsive pleading. Based on these communications,
Plaintiff argues, Defendants’ position is unsupported.

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While the Court is sympathetic to Plaintiff’s position, “the law strongly favors trial and
disposition on the merits,” and “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
[superseded on other grounds by statute].) Mrs. Harms has appeared at multiple hearings in this
matter and is an active participant in this lawsuit. Moreover, there is a declaration on file from
Mr. Harms, also indicative of his intent to actively participate in this lawsuit. There are answers
included with the motion, and the Court finds it is the best course of action to allow this case to proceed to a determination on the merits.

Conclusion.
Defendants’ motion is granted. The default will be set aside. The Court will accept the answers
submitted with Defendants’ motion for filing at the hearing on this motion.

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The Court agrees with Plaintiff that Defendants’ responsive pleading will be limited to these answers.