Case Number: BC633489 Hearing Date: October 30, 2018 Dept: 2

Motion by Defendant, Hooman Hyundai, to Vacate and Set Aside Default and Default Judgment, filed on 10/16/18, is GRANTED. The court vacates the 2/16/18 entry of default against Defendant and the subsequent Judgment filed on 5/9/18. Defendant is ordered to file its answer within ten (10) days of this Order.

The motion is timely made in less than six months from the date of default entry. Cal Code Civ. Proc. § 473. If there is no prejudice, only slight evidence is needed. Doubts are resolved in favor of the party seeking relief. Mink v. Superior Court (1992) 2 Cal.App.4th 1338. The six months’ limitation period commences to run from the clerk’s entry of the default and not from the date of entry of judgment. Castagnoli v. Castagnoli (1954) 124 Cal.App.2d 39, 41-42.

Defendant’s counsel has shown mistake and inadvertence in failing to timely file an answer although he had instructed his assistant to do so, and it did not become apparent to Defendant’s counsel since his assistant stopped working for him. Declaration of Duncan McCready, ¶ 5. Default was entered because an Answer was never filed.

The parties do not agree on who was supposed to prepare the stipulation to set aside the default, but it is clear from both counsels’ declarations that both parties did agree to vacate the default entry at one point, and the judgment would not have been obtained had a stipulation been prepared.

A “mistake” occurs “when a person, under some erroneous conviction of law or fact, does or omits to do some act which, but for the erroneous conviction, he would not have done or omitted. It may arise either from unconsciousness, ignorance, forgetfulness, imposition or misplaced confidence.” Salazar v. Steelman (1937) 22 Cal. App. 2d 402, 410.

Pursuant to Cal. Code Civ. Proc. § 473(c), the Court awards Plaintiff costs and fees of $2,000 incurred to be paid by Defendant’s counsel, Duncan J. McCreary, within thirty (30) days. The court has discretion to require the offending attorney to pay a penalty or “other appropriate relief” under Cal. Code Civ. Proc. 473(c) where the court grants relief under Cal. Code Civ. Proc. § 473.

“Other appropriate relief” has been construed as costs and attorney’s fees. Hearst v. Ferrante (1987) 189 Cal. App. 3d 201, 204.

Moving party is ordered to give notice.