Case Number: EC059289    Hearing Date: September 05, 2014    Dept: B

EC059289
SHARA AIVAZI vs ALEX CHRIS GHARAKHANI
Motion to Set aside Default
Judgment Debtor Examination

This case arises from the claims of the Plaintiff, Shara Aivazi, that he suffered personal injuries when the Defendant, Alex Gharakhani, assaulted and battered him at a party. The Defendant filed a Cross-Complaint to allege that the Plaintiff assaulted and battered the Defendant.
This hearing concerns the Cross-Defendant’s motion to set aside the default judgment entered against him on February 4, 2014. Under CCP section 473(b), a party may seek mandatory relief from the entry of a default and default judgment based on evidence that the entry of default was caused by the mistake, surprise, inadvertence, or neglect of the party’s attorney. Section 473(b) states that the motion must be filed within six months from the entry of the default judgment. See Sugasawara v. Newland (1994) 27 Cal. App. 4th 294, 296-297 (finding that the six-month limitation for attorney neglect runs from the entry of default judgment and that the order granting relief sets aside the default and the default judgment).

The Cross-Defendant’s attorney, P. Paul Aghabala, provides facts in his declaration to demonstrate that the default was caused by his neglect to file a timely response to the First Amended Cross-Complaint. Mr. Aghabala states that he received the Cross-Complaint and filed a demurrer on January 3, 2013. After the Cross-Complainant then filed a First Amended Cross-Complaint on January 24, 2013, Mr. Aghabala states that he appeared at the case management conference and stated that he would file a demurrer to the First Amended Cross-Complaint.
The Cross-Defendant did not file a demurrer or answer within thirty days from service of the First Amended Cross-Complaint, or by February 23, 2013. Accordingly, a default was entered on March 3, 2013. Mr. Aghabala states in paragraph 27 that he mistakenly believed that the time to file a response to the First Amended Complaint would be thirty days from February 20, 2013. Further, Mr. Aghabala states in paragraph 28 that he did not expect the default because he had already reserved a date for the demurrer.
These facts indicate that the default was caused by the neglect of the Cross-Defendant’s attorney. Accordingly, the Cross-Defendant is entitled to relief from the entry of default and default judgment under the mandatory provisions of CCP section 473(b).

The Cross-Complainant argues that the Cross-Defendant’s motion is an improper attempt to obtain reconsideration of a previously filed ex parte motion for relief from the default and a previous filed motion for relief from the default. The Court denied the ex parte motion for relief from the default because Department 93 does not grant ex parte applications to shorten time. Further, the Court denied the motion for relief from the default because it was not timely. The pending motion does not seek reconsideration of those orders; instead, the Cross-Defendant seeks relief under the mandatory provision of CCP section 473(b) from the entry of the default judgment. Accordingly, the pending motion is not an improper attempt to obtain reconsideration.
The Cross-Complainant then argues that the neglect is inexcusable. This is not grounds to deny the motion because for purposes of section 473(b), 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).
Accordingly, there are no grounds to deny the Cross-Defendant’s request for relief from the entry of the default under the mandatory provisions of CCP section 473(b).

The Cross-Complainant also requests that the Court award attorney’s fees. Under CCP section 473(b), the Court “shall, whenever relief is granted based on an attorney’s affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties.” Accordingly, there are grounds to order the Cross-Defendant’s attorney, P. Paul Aghabala, to pay reasonable compensatory legal fees and costs to the Cross-Complainant because the Cross-Defendant’s request for relief is based on P. Paul Aghabala’s affidavit of fault.
The Cross-Complainant seeks $2,190 in attorney’s fees. The Cross-Complainant’s attorney, Talin Yacoubian, supports the request with facts in paragraph 12 of his declaration. These facts demonstrate that he incurred 6 hours at $365 per hour. The amount requested of $2,190 is a reasonable amount of attorney’s fees to order P. Paul Aghabala to pay under CCP section 473(b) for his mistake and neglect that caused the entry of a default and default judgment against the Cross-Defendant. It is so ordered.
Relief from default and default judgment ordered
Answer to Cross-Complaint to be filed forthwith
Cross-Defendant’s counsel, P.Paul Aghabala to pay to Plaintiff as and for attorneys’ fees, $2190 within 30 days.