Case Number: BC645424 Hearing Date: March 21, 2018 Dept: 92

MIGUEL PONCE,

Plaintiff(s),

vs.

HRISTO KAREEM ENRIQUEZ, et al.,

Defendant(s).

)

)

)

)

)

)

)

)

)

)

)

Case No.: BC645424

[TENTATIVE] ORDER GRANTING MOTION TO SET ASIDE DEFAULT

Dept. 92

1:30 p.m.

March 21, 2018

1. Background Facts

Plaintiff, Miguel Ponce filed this action against Defendants, Hristo Kareem Enriquez, Consuelo Enriquez Navas, and Juan Alberto Enriquez for damages arising out of an automobile accident. Plaintiff filed his complaint on 1/06/17. Plaintiff filed proof of service of the summons and complaint on 3/22/17, showing service on Defendant, Hristo Enriquez via substituted service. The POS shows Defendant was served on 2/03/17 with the papers mailed on 3/13/17.

On 7/12/17, Plaintiff filed a proof of service of a Statement of Damages on Defendant, Hristo Enriquez. The POS shows the Statement of Damages was served via personal service on 7/09/17.

On 8/24/17, at Plaintiff’s request, the clerk entered Defendant’s default.

2. Motion to Set Aside Default

At this time, Defendant moves to set aside the default entered against it. Defendant filed his moving papers on 2/14/18. The essence of the motion is simple. Defendant contends his attorney had a conversation with Plaintiff’s attorney pursuant to which the attorneys agreed to engage in mediation and Plaintiff agreed to accept the outcome of the mediation in full resolution of the case; Defense Counsel believed, per the conversation, that Defendant did not need to file an answer to the complaint. Defense Counsel was “surprised” when default was entered.

a. General Law Regarding Motions to Set Aside Default

The court has broad discretion to vacate the entry of default, default judgment or a dismissal, but that discretion can be exercised only if the defendant establishes a proper ground for relief, by the proper procedure and within the set time limits. Pursuant to CCP §473(b), a motion to set aside/vacate cannot be brought more than 6 months after the entry of default and must be made within a “reasonable time” if discretionary relief is sought. There is no longer a diligence requirement when mandatory relief is sought pursuant to an attorney affidavit of fault.

With respect to mandatory relief, 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 of fault attesting to his/her mistake, inadvertence, surprise or neglect, the court “shall” vacate the resulting default, default judgment or dismissal. CCP §473(b). Counsel argue over whether they entered into an agreement for binding arbitration and whether they discussed as a part of that deal that no answer needed to be filed. The Court need not resolve that as that is not the issue on this motion. Defendant’s attorney filed the requisite affidavit of fault attesting to the fact that the default was entered as a result of his understanding that no answer was necessary based on an agreement with Plaintiff’s counsel. To the extent there was such an agreement discretionary relief is proper. To the extent there was not, the default was entered as a result of counsel’s mistake or neglect and relief is mandatory

b. Conclusion

The motion to set aside the default is granted. The Court notes that Defendant filed a copy of his answer with the moving papers. Defendant is ordered to file a separate copy of the answer within five days.