2013-00144419-CU-CL

Grant & Weber vs. Kewal S. Sidhu

Nature of Proceeding:      Motion for Order Granting Relief from Default and Default Judgment

Filed By:    Kuney, Justin K.

Defendants’ motion for mandatory relief under the attorney fault provision of CCP 473
is unopposed and is granted.

Answer shall be filed and served on or before July 7, 2014.

The salient facts are these: Plaintiff took defendants default and default judgment on
February 21, 2014.  Defendants contend that their former attorney was at fault in
allowing the entry of the default and default judgment. Counsel Welch has filed an
affidavit of fault stating that he had attempted to file an Answer with the clerk and
thought that the Answer had been filed, however it was later returned for non-
compliance with the rules of court. Counsel served a copy of the Answer on counsel
for plaintiffs, yet was never informed by plaintiff’s counsel that a default would be
sought. (Declaration of Welch.)

If plaintiff’s counsel knows the identity of the lawyer representing defendant, he or she            owes an ethical obligation to warn before requesting entry of defendant’s default.
Failure to do so is a professional discourtesy to opposing counsel that will not be
condoned by the courts: ‘The quiet speed of plaintiffs’ attorney in seeking a default
judgment without the knowledge of defendants’ counsel is not to be commended.’
Fasuyi v Permatex, Inc. (2008) 167 Cal.App.4th 681, citing Smith v Los Angeles
Bookbinders Union No. 63 (1955) 133 Cal.App.2d 486, 500, disapproved on other
grounds in MacLeod v Tribune Pub. Co., Inc. (1959) 52 Cal.2d 536, 551.

Although sanctions are normally mandatory under this section, the Court declines to
award sanctions on the ground that counsel was aware that defendants were
represented by counsel yet the default was taken without prior warning to counsel.
(Declaration of Welch)  Moreover, there is no declaration filed on behalf of plaintiff from
which the court could calculate a reasonable amount of attorneys fees incurred in
taking the default.

The minute order is effective immediately.  No formal order pursuant to CRC Rule
3.1312 or further notice is required.