2009-00035502-CU-PA

Qer Lee vs. Cobbs Bus Service LLC

Nature of Proceeding: Motion to Set Aside

Filed By: Mitchellweiler, J. Dana

Defendant Transit Sales International’s (“TSI”) Motion to Set Aside Entry of Default is
GRANTED. C.C.P., secs. 473. The Clerk’s Entry of Default of Transit Sales
International on June 7, 2013 is ordered STRICKEN.

Plaintiff served its Second Amended Complaint (“SAC”) on Jan. 31, 2012 (courtesy
copy to counsel) and Feb. 1, 2013 (on defendant by substituted service).

TSI filed its demurrer to the SAC on August 27, 2012, which was heard and granted in
part and denied in part on March 6, 2013. Plaintiff was given leave to amend and TSI
was ordered to file its Answer within 15 days of service of the TAC.

Plaintiffs’ Third Amended Complaint (“TAC”) was filed and served on March 21, 2013.

Plaintiffs served a C.C.P., sec. 998 offer on defendant TSI on March 7, 2013. The offer
expired 30 days later. Settlement negotiations continued thereafter between plaintiff’s
counsel Michael Shea and counsel for TSI.

TSI received a written extension of time from plaintiffs’ attorney Shea until May 3, 2013
in which to file its Answer. (Mitchellweiler Dec., para. 4, Exh. A.)

On May 9, 2013, counsel for TSI and Shea again discussed the case, specifically the
plaintiffs’ intention to appeal the Court’s decision granting Greyhound’s Motion for
Summary Judgment, and plaintiffs’ planned “reformatting” of the case. Counsel for TSI
declares that they discussed whether TSI should file its Answer to the Third Amended Complaint.

Counsel for TSI understood from that conversation that attorney Shea had agreed to
“put all matters on hold”, implicitly granting a further extension of time in which TSI
could file its Answer to the Third Amended Complaint, until the next Case
Management Conference set for June 14, 2013. (Mitchellweiler Dec., para. 5)

At the Friday, June 14, 2013 Case Management Conference, a different attorney
appeared for plaintiffs. Instead of Shea, with whom counsel for TSI had been
communicating regarding the Answer, Fielder was present for plaintiffs. The Court
notes that the Court record reflects that plaintiffs are represented by four different law
firms, located in four separate cities, including attorneys Shea of San Jose and Fielder
of Nevada City, California.

At the CMC, Plaintiff’s counsel Fielder acknowledged on the record that he was
unaware that TSI had been given an extension of time in which to respond to the Third
Amended Complaint. In response to the Court’s expressed concern about when TSI
would file its appearance, TSI’s counsel represented to the Court that the Answer
would be filed the following week.

Plaintiff’s counsel Fielder stated on the record that he was “glad to hear that [the TSI
Answer would be filed] since I believe a default was in the works here, but that will be
stayed, of course since he’s filing his Answer. As long as we get this part of it rolling,
there won’t be a need for that.” (Mitchellweiler Dec., para. 6, Exh. C, 10:13-16.)

In fact, plaintiff’s Request for Entry of Clerk’s Default of TSI had been signed by Fielder
eight days earlier, and after Court document processing delays, was entered nunc pro
tunc against defendant TSI on June 7, 2013, a date before the June 14, case
management conference.

The Clerk also (erroneously) filed TSI’s Answer to the TAC on June 24, 2013.

In support of this motion, the declaration of Mitchellweiler, counsel for TSI, reflects that
the defendant failed to timely file its Answer, due to attorney fault in believing, through
mistake, inadvertence, surprise or neglect that TSI had an extension of time in which
to Answer.

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, the court shall 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.
Code Civ. Proc. § 473(b)

Relief is mandatory based on attorney fault, and counsel for plaintiffs has represented
in open court at the CMC that the entry of default “will be stayed, of course since he’s
filing his Answer. As long as we get this part of it rolling, there won’t be a need for
that.” No showing of prejudice to plaintiffs could overcome the mandatory relief from
default. As the Answer has already been filed by the Clerk, no further pleading need be
submitted.

This minute order is effective immediately. No formal order nor further notice is
required, the tentative ruling providing sufficient notice.

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