Case Number: EC058340    Hearing Date: August 01, 2014    Dept: A

Anderson v Worldwide Classic Media

MOTION TO SET ASIDE DISMISSAL

Calendar: 17
Case No: EC058340
Date: 8/1/14 – 1:30 PM

MP: Defendants, Worldwide Classic Media, Inc., James Pressimone, and
Joseph Fardella
RP: Plaintiff, John Anderson, et al.

RELIEF REQUESTED:
Order setting aside the Court’s dismissal of the case at the Final Status Conference on December 10, 2013

DISCUSSION:
This case arises from a dispute regarding the ownership of a media library. No trial is set.
A default was entered against the Defendants on December 24, 2013 because they did not file an answer to the Second Amended Complaint. The default prove-up is set for the same date as this hearing.

At this hearing, the Defendants request that the Court set aside the defaults entered against them because they were entered through a calendaring mistake. The hearing was continued from July 3, 2014.

CCP section 473(b) permits the Court to set aside a default entered through the mistake, inadvertence, surprise, or neglect of an attorney when the attorney submits a declaration and demonstrates that the attorney’s mistake, inadvertence, surprise, or neglect caused the dismissal. Dismissals and defaults caused by the mistakes of an attorney or his or her staff are routine grounds for relief under CCP section 473(b). Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal. 4th 249, 259.
The Defendants’ attorney, M. Hank Etess, provides facts in a declaration to demonstrate that the defaults were entered because he miscalculated the date on which the answer was due. Mr. Etess states that he filed and served the answer on December 29, 2014. A review of the Court file reveals that the answer was filed on December 29, 2014. Since the defaults were entered as a result of the mistake of the Defendants’ counsel, the Court will set aside the defaults under the mandatory provision of CCP section 473(b).

The Plaintiff’s opposition raises a number of points. First, the Plaintiff raises arguments about service. The Court continued the hearing to resolve any issue the Plaintiff had with notice that the Defendant was seeking relief from a default based on the mandatory provision of CCP section 473(b) for an attorney’s calendaring mistake.
Second, the Plaintiff argues that the motion was not filed within a reasonable time and that the Defendant was not diligent. Neither is a requirement for a motion seeking relief under the mandatory provision of CCP section 473(b) for an attorney’s mistake. See Metropolitan Service Corp. v. Casa de Palms, Ltd. (1995) 31 Cal. App. 4th 1481, 1488 (finding that the mandatory provision of CCP section 473(b) do not require a showing that the attorney’s neglect was excusable nor a showing of diligence short of the six-month time limit).
Third, the Plaintiff offers the argument that the Defendant failed to demonstrate that the default was the cause of the attorney. As noted above, Mr. Etess stated that he did not file the answer by December 24, 2014 because he miscalendared the date. Since Mr. Etess was responsible for filing the response to the pleadings, Mr. Etess has offered facts that establish that the default was entered through his mistake, i.e., the mistake of the attorney caused the entry of default.

Finally, the Defendants’ attorney, Mr. Etess, states that he did not receive the request for default prior to the filing of the answer. This case has been heavily litigated and a review of the Court file reveals that there have been approximately twenty hearings. A most fundamental legal principle is the policy to have every litigated case tried upon its merits, and to look with disfavor upon a party, who, regardless of the merits of the case, attempts to take advantage of the mistake, surprise, inadvertence, or neglect of his adversary. Au-Yang v. Barton (1999) 21 Cal.4th 958, 963.

The Plaintiff’s attorney seeks an award of $2,474.78 in attorney’s fees. Most attorneys would have stipulated to set aside a default in a litigated case that had been entered due to the attorney’s 5 day calendaring mistake. Under CCP section 473(b), whenever relief is granted from a default entered through an attorney’s mistake, the Court shall order the attorney to pay reasonable compensatory legal fees and costs to opposing counsel.
The Plaintiff’s attorney, Robert Evans, states that his office incurred 0.5 hours to prepare the default and 6.4 hours to object to and then oppose the pending motion. The 6.4 hours incurred regarding the pending motion are not reasonable compensatory legal fees and costs because they were incurred as a result of the decision of the Plaintiff’s attorney to object and oppose a motion to set aside a default under the mandatory provision of CCP section 473(b). The Court will order the Defendant’s attorney, Mr. Etess, to pay only the fees incurred due to his calendaring error, i.e., the 0.5 hours to prepare the request for entry of default. Accordingly, the Court will order the Defendant’s attorney, Mr. Etess, to pay $150 for the 0.5 hours billed at $300 to prepare the default request.

Therefore, the Court will grant the Defendants’ motion and set aside the defaults entered against the Defendants.

RULING:
1. GRANT motion and set aside defaults entered on December 24, 2013.
2. SET date for Case Management Conference.
3. ORDER M. Hank Etess to pay $150 to Plaintiff within thirty days.