Case Number: KC067190 Hearing Date: January 26, 2015 Dept: J
Re: United International Health Net, Inc. v. John Carr, et al. (KC067190)

MOTION FOR RELIEF FROM ENTRY OF DEFAULT

Moving Party: Defendant John Carr

Respondent: Plaintiff United International Health Net, Inc.

POS: Moving OK; Opposing served by regular mail contrary to CCP § 1005(c)

In this breach of contract action, Plaintiff seeks to recover $75,460.97 for medical services provided to Defendant by Plaintiff’s assignors. The Complaint, filed on 9/24/14, asserts causes of action for:

1. Breach of Contract
2. Common Counts

Defendant John Carr was served with the summons and complaint on 9/30/14, and his default was entered upon request of Plaintiff’s counsel on 12/3/14.

The Case Management Conference is set for 2/6/15.

Defendant John Carr (“Defendant”) moves pursuant to CCP § 473(b) to vacate and set aside the entry of default entered against him on December 3, 2014, on the grounds that the default was taking against him by reason of mistake, inadvertence, surprise and excusable neglect.

The court is empowered to relieve a party “upon any terms as may be just … 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).) Mistake is proper where the defendant was mistaken as to some fact material to defendant’s duty to respond. (Lieberman v. Aetna Ins. Co. (1967) 249 Cal.App.2d 515, 523-524.) “Surprise” refers to “some condition or situation in which a party … is unexpectedly placed to his injury, without any default or negligence of his own, which ordinary prudence could not have guarded against.” (Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1206.) Excusable neglect boils down to whether the moving party has shown a reasonable excuse for the default. (See Shapiro v. Clark (2008) 164 Cal.App.4th 1128, 1141–1142 — rejecting “categorical statements about what can be found to constitute excusable neglect.”) If granting the relief will not prejudice the opposing party (other than losing the advantage of the default), “the original negligence in allowing the default to be taken will be excused on a weak showing.” (Aldrich v. San Fernando Valley Lumber Co. (1985) 170 Cal.App.3d 725, 740.)

“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.” (Elston v. City of Turlock (1985) 38 Cal.3d 227, 233; see Fasuyi v. Permatex, Inc. (2008) 167 Cal.App.4th 681, 696.) Where the party in default moves promptly to seek relief, and no prejudice to the opposing party will result from setting aside the default and letting the case go to trial on the merits, “very slight evidence will be required to justify a court in setting aside the default.” (Elston v. City of Turlock, supra, 38 Cal.3d at 233; Fasuyi v. Permatex, Inc., supra, 167 Cal.App.4th at 696.)

Defendant timely filed this motion on December 19, 2014; a little over two weeks after the default was entered on December 3, 2014.

Defendant represents that based on the totality of communications with Plaintiff’s counsel, Defendant was mistakenly led to believe that he did not have to take any action or steps to respond to the Complaint. Specifically, Defendant represents that: Prior to this lawsuit, there was a history of communications with Michael Sayer, Esq., counsel for Plaintiff United International Health Net, Inc., a collections agency and Defendant. (Motion, Carr Decl. ¶ 2.) Mr. Sayer asked for Defendant’s cooperation and assured him that he was attempting to obtain payment not from him, but his insurer, Kasier Foundation Health Plan, Inc. for medical services he received while vacationing in Mexico. (Ibid.) On September 24, 2014, Defendant was personally served at his place of residence with the Summons and Complaint in this action. (Id. ¶ 3.) Defendant continued to communicate with Mr. Sayer who told him that he would give him an “extension,” but that Defendant did not fully comprehend what that meant. (Ibid.) Defendant is an elderly man (73 years old) and he does not fully understand the complexities of courts or litigation. (Ibid.) At that time, he was not represented by counsel and was not aware of the implications of failing to respond to the Complaint. (Ibid.)

It appears that the default in this action was entered as a result of Defendant’s mistake, inadvertence, surprise, or excusable neglect, and that no prejudice to Plaintiff will result from setting aside the default and allowing the case go to trial on the merits. Thus, the motion is granted. The proposed Demurrer is deemed filed and served today.

FEES AND COST AWARDS

If relief from default is based on evidence other than an “attorney affidavit of fault,” the court may in its discretion order the defendant to pay the costs, including attorney fees, incurred by the plaintiff in obtaining the default judgment. (Rogalski v. Nabers Cadillac (1992) 11 Cal.App.4th 816, 823; Vanderkous v. Conley (2010) 188 Cal.App.4th 111, 118–119.)
Plaintiff requests that the court issue a sanction in the sum of $1,000.00 pursuant to CCP § 473(c)(1)(a). It appears that the amount sought is somewhat excessive given the circumstances of when and how the default entered. Thus, the court is inclined to award $250.00 for Plaintiff’s attorney fees incurred by Plaintiff in obtaining the default.