Case Number: BC719915 Hearing Date: September 10, 2019 Dept: 3

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

ESTEBAN JIMENEZ, ET AL.,

Plaintiff(s),

vs.

JAVIER MENDEZ ROMAN, ET AL.,

Defendant(s).

Case No.: BC719915

[TENTATIVE] ORDER GRANTING MOTION TO VACATE DEFAULTS

Dept. 3

1:30 p.m.

September 10, 2019

1. Background Facts

Plaintiffs, Esteban Jimenez and Michell Leon filed this action against Defendants, Javier Mendez Roman and Jorge Arrellano for damages arising out of an automobile accident. Plaintiffs filed the complaint on 8/30/18. Plaintiffs filed proof of service of the summons and complaint on Defendants on 2/20/19; the POS documents show service on Roman by substitute service on 2/18/19 and on Arellano by personal service on 1/29/19.

On 7/16/19, at Plaintiffs’ request, the Clerk entered Defendants’ defaults. On 8/09/19, Defendants filed this motion to vacate the defaults.

2. Motion to Vacate Defaults

Defendants move to vacate the defaults entered against them, contending the defaults were entered as a result of their attorney’s neglect. The motion is supported by the Declaration of Counsel, who declares she contacted Plaintiffs’ attorney in November asking for proof of service of the summons and complaint, she received the proof of service in February, and she inadvertently failed to calendar the due date for the answers. She did not realize her failure until she received the notices of default in July; she promptly filed this motion upon receipt of the notices of default.

Plaintiffs oppose the motion, arguing (a) Defendants waited too long between the time their answer was due and the time they filed this motion, and (b) Defense Counsel’s neglect was not excusable. Plaintiffs cite law relating to a discretionary, as opposed to mandatory, motion to vacate a default.

Whenever 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 of fault attesting to his/her mistake, inadvertence, surprise or neglect, the court “shall” vacate the resulting default, default judgment or dismissal. CCP §473(b). The only limitation is that the court may deny relief if it finds that the default, default judgment or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise or neglect, but that the attorney is attempting to “cover up” for his/her client. Rogalski v. Nabers Cadillac (1992) 11 Cal.App.4th 816. If the attorney is willing to take the blame and pay the costs, the court must set aside the entry of default, default judgment or dismissal. If the application for relief is not accompanied by an “attorney affidavit of fault,” relief is discretionary and must be based on a showing of “mistake, inadvertence, surprise or excusable neglect.” CCP §473(b).

Defendants herein accompanied their motion with an attorney affidavit of fault. The Court therefore lacks discretion to deny the motion, and it is granted.

The only remaining issue is whether to impose sanctions. In granting relief based on an “attorney affidavit of fault,” the court must “direct the attorney to pay reasonable compensatory legal fees and costs” to the opposing counsel or parties. CCP § 473(b). Plaintiffs seek compensation in the amount of $1500 (points and authorities) or $1580 (attorney declaration). Plaintiffs’ attorney does not declare what his billing rate is. Plaintiffs’ attorney seeks to recover costs for filing the complaint, an act that would be necessary regardless of whether default was entered. Plaintiffs’ attorney seeks to recover certain costs, but does not indicate what they are or why they were incurred. The Court assigns Plaintiffs’ attorney the billing rate of $200/hour. The Court awards .5 hours to prepare the request for default. The Court awards one hour to prepare the opposition to the motion, as the opposition contained a mostly erroneous statement of the applicable law. The Court awards two hours of appearance time for the hearing on the motion. The Court therefore awards a total of 3.5 hours of attorney time at the rate of $200/hour, or $700 in sanctions. Defense Counsel is ordered to pay $700 to Plaintiffs, by and through their attorney of record, within twenty days.

Defendants are ordered to give notice.