Case Number: BC524346    Hearing Date: July 21, 2014    Dept: 32

CASE NAME: Konrad Stefan Sonnenfeld, et al. v. Jennifer Green
CASE NO.: BC524346
HEARING DATE: 07/21/14
DEPARTMENT: 32
CALENDAR NO.: 9
SUBJECT: Motion to Set Aside Default against Defendant Jennifer Green
MOVING PARTY: Defendant Jennifer Green
RESP. PARTY: Plaintiff Konrad Stefan Sonnenfeld and Melissa B. Papageorge, as Trustees of the Sonnenfeld/Papageorge Living Trust

COURT’S TENTATIVE RULING

Motion to Set Aside Default against Defendant Jennifer Green GRANTED.

ANALYSIS

Mandatory Relief

The Code of Civil Procedure (“CCP”) provides for both mandatory relief and discretionary relief in a situation such as this. The court “shall” set aside the default if it was taken against the party based on mistake, inadvertence, surprise, or neglect of his attorney and an attorney affidavit of fault is filed with the motion. (CCP § 473(b).) “[T]he trial court is not required to consider granting relief under the mandatory provision without a request for such relief” in the motion, even if a declaration of fault is submitted from the attorney. (See Luri v. Greenwald (2003) 107 Cal.App.4th 1119, 1125.) In the moving papers, Defendant requested relief under the discretionary provision of § 473(b), not the mandatory provision. Accordingly, the court does not consider whether Defendant is entitled to relief under the mandatory provision.

Discretionary Relief

In terms of discretionary relief, the CCP provides as follows: “The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” (CCP § 473(b).) Generally, absent an attorney affidavit of fault, a default judgment can only be set aside based on a showing of excusable neglect. (CCP § 473(b)).

“Section 473 is often applied liberally where the party in default moves promptly to seek relief, and the party opposing the motion will not suffer prejudice if relief is granted. In such situations ‘very slight evidence will be required to justify a court in setting aside the default.’” (Elston v. City of Turlock (1985) 38 Cal.3d 227, 233, superseded by statute on other grounds; citations omitted.) “Because the law strongly favors trial and disposition on the merits, any doubts in applying section 473 must be resolved in favor of the party seeking relief from default.” (Id.) “Therefore, a trial court order denying relief is scrutinized more carefully than an order permitting trial on the merits.” (Id.)

To constitute excusable neglect, “the acts which brought about the default must have been the acts of a reasonably prudent person under the same circumstances.” (Jackson v. Bank of America (1983) 141 Cal.App.3d 55, 58.)

In a declaration, Defendant states she is “a pregnant, unemployed young woman with no assets.” She states that her husband, an attorney, is representing her in this matter. She states that the family is facing a financial hardship, as her husband recently lost his job, and “does not even have enough
money to pay bills after this month (June 2014) is over.” (Green Decl. ¶ 4.)

In a declaration, Defendant’s husband, and counsel in this matter, states the following: “I am currently unemployed and looking for full-time work on a full-time basis. The family does not even have enough money to pay bills after this month (June 2014) is over. There are important bills that need to be paid, first and foremost Jennifer’s health care premiums and pregnancy deductible. It is imperative that I find work in order to continue paying for Jennifer’s health care while she is pregnant. We are a young family trying to survive. [¶] We (Moving Party and her counsel) have faced tremendous hardships that have prevented Moving Party from responding. Moving Party is an unemployed, pregnant young
woman with no assets…. Accordingly, we decided that I would represent her. [¶] But then, unexpectedly, at the same time as a response to the complaint was due, I lost my job of over five years. We were thrown into disarray by the layoff. I am the only income earner. Suddenly, the most important thing became finding a job to support the family.” (Mihalovits Decl. ¶¶ 3-5.)

Defendant’s husband also indicates that Plaintiff’s counsel knew that he was representing Defendant but failed to warn him that Plaintiff intended to seek entry of default. (Id. ¶ 9.) Defendant contends that Plaintiff’s failure to warn her husband of the default was an ethical violation. “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.” (Fasuyi v. Permatex, Inc. (2008) 167 Cal.App.4th 681, 701, quoting the Rutter Guide.)

Under the totality of circumstances, there is sufficient evidence of excusable neglect here. Defendant submits evidence that she is pregnant with the family’s first child, and that she was pregnant at the time default was entered. Her husband (the sole earner) had recently lost his job at the time default was entered. The couple faces a significant financial hardship. Although generally one would expect an attorney to respond to a complaint despite adverse circumstances, there are mitigating factors here since the attorney is also Defendant’s husband and the default came at a stressful time for the couple. Also, Plaintiff’s counsel concedes that he believed Defendant’s husband would represent Defendant (see Potter Decl. ¶ 3), which raises the question why counsel did not warn Defendant or her husband before requesting default. (See Fasuyi, supra.). On the other hand, the court has also considered Plaintiff’s position that Defendant’s uncooperative conduct required Plaintiff to go to the extra expense of staking out Plaintiff’s residence to serve the summons and complaint. Had Plaintiff and her husband attorney agreed to accept service, as requested by Mr. Potter, and then timely filed a responsive pleading this situation would have been avoided. This is not, however, a reason to deny relief. That said, in the future the court expects both sides to litigate this action in a way which reduces, rather than increases, litigation costs.
Finally, Plaintiff has not submitted evidence of any serious prejudice. A default judgment has not been entered, and the case has been pending only since October 15, 2013. By granting the motion, both sides are able to present their respective positions on the merits.

The motion is GRANTED.