Case Number: 18STCV01145 Hearing Date: September 17, 2019 Dept: 4A

Motion to Set Aside Default

Having considered the moving papers, the Court rules as follows. No opposing papers were filed.

BACKGROUND

On October 17, 2018, Plaintiff Milcah M. Fountain (“Plaintiff”) filed a complaint against Defendants City of Los Angeles, Duc Lam, Hua Wu, and Lien Cam Lam. The complaint alleges negligence, premises liability, vicarious liability under Government Code section 815, et seq., and a dangerous condition of public property under Government Code sections 830 and 835, et seq., for a trip-and-fall that occurred on October 20, 2017.

On February 15, 2019, the Court dismissed the complaint as to Defendant City of Los Angeles without prejudice.

On July 24, 2019, the Court entered default against Defendants Duc Lam, Hua Wu, and Lien Cam Lam.

On August 16, 2019, Defendants Duc Lam, Hua Wu, and Lien Cam Lam filed a motion to set aside the July 24, 2019 entry of default pursuant to California Code of Civil Procedure section 473, subdivision (b).

PARTY’S REQUEST

Defendants Duc Lam, Hua Wu, and Lien Cam Lam (“Moving Defendants”) ask that the Court set aside the July 24, 2019 entry of default on the grounds that Moving Defendants and their counsel were confused as to whether their counsel was supposed to file an answer or if a lawyer-friend was going to file an answer.

LEGAL STANDARD

California Code of Civil Procedure section 473, subdivision (b) states: “The court may, upon any terms as may be just, relieve a party or his or her legal representative from a[n] . . . other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief . . . shall be made within a reasonable time, in no case exceeding six months, after the . . . other proceeding was taken. . . .” Notwithstanding any other requirements of this section, the court shall, 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 attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect. . . .”

Relief is mandatory when an attorney files the required affidavit, even if the attorney’s neglect was inexcusable. (Carmel, Ltd. v. Tavoussi (2009) 175 Cal.App.4th 393, 401 (setting aside a default entered when the attorney failed to file an answer).) No reason need be given for the existence of one of these circumstances and attestation that one of these reasons existed is sufficient to obtain relief, unless the trial court finds that the dismissal did not occur because of these reasons. (Graham v. Beers (1994) 30 Cal.App.4th 1656, 1660.)

“The court shall, whenever relief is granted based on attorney’s affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties.” (Code Civ. Proc. § 473, subd. (b).)

DISCUSSION

Moving Defendants’ counsel conveyed to Moving Defendants that they must file an answer to the complaint. (Harrison Decl., ¶ 4.) Before Moving Defendants’ counsel could file their answer, he received a call from Defendant Lien Lam who stated she was out of town and directed counsel to speak to attorney Frank Thompson. (Ibid.) Mr. Thompson led Moving Defendants’ counsel to believe that Mr. Thompson was handling the case and that Moving Defendants’ counsel was to wait for further instructions before acting. (Harrison Decl., ¶¶ 4-5) Once Moving Defendants’ counsel heard back from Moving Defendants, they realized there had been a misunderstanding and that a request for entry of default had been granted against Moving Defendants. (Ibid.)

The Court initially notes that Moving Defendants’ counsel declares that he is counsel for Defendant Kim Tran. There is no Defendant Kim Tran. (Harrison Decl., ¶ 1.) Rather, this appears to be a mistake. This is because Moving Defendants’ counsel speaks of representing Moving Defendants in paragraphs 2-6 of his declaration and throughout the motion at bar. As such, the Court finds Moving Defendants’ statement that he is counsel for Defendant Kim Tran is a typographical or editing error and what was intended is that Gary S. Harrison, Esq. is counsel for Moving Defendants.

The Court finds the declaration of Moving Defendants’ counsel is an attorney affidavit of fault that is sufficient to grant mandatory relief from default under Code of Civil Procedure section 473(b). Moving Defendants’ counsel’s fault in failing to understand that he was responsible for filing the pleading responsive to the complaint triggers the mandatory relief aspect of section 473(b).

Accordingly, the motion is GRANTED.

The Court sets aside the July 24, 2019 default. Defendants are ordered to file their answer or other responsive pleading within 20 days. The Court sets a trial setting conference for October 23, 2019 at 8:30 a.m. in Department 4A of the Spring Street Courthouse.

Moving Defendants are ordered to give notice of this ruling.