DEONDRE RAGLIN VS WATTS HEALTHCARE CORPORATION

Tentative Rulings

Case Number: 19STLC04571    Hearing Date: November 12, 2019    Dept: 94

MOTION TO SET ASIDE/VACATE DEFAULT AND DEFAULT JUDGMENT

(CCP § 473(b))

TENTATIVE RULING:

The Motion is GRANTED. Defendant is ordered to pay plaintiff $712.50.

OPPOSITION: Filed on Oct. 9, 2019 [ ] Late [ ] None

REPLY: Filed on Nov. 4, 2019 [ ] Late [ ] None

1. Background

Plaintiff Deondre Raglin (“plaintiff”) brought this violation of Unruh Civil Rights Act action against defendant Watts Healthcare Corporation (“defendant”) on May 10, 2019. On July 5, 2019, default was entered against defendant. On July 10, 2019, defendant filed an answer. On August 7, 2019, the court entered default judgment against defendant.  

Upon learning about the default and default judgment, defendant filed the instant Motion to Set Aside Entry of Default Judgment (the “Motion”) based on his counsel’s mistake under the mandatory provision of CCP § 473(b) on September 26, 2019. Plaintiff filed an Opposition on October 9, 2019. Defendant filed a Reply on November 4, 2019.

1. Legal Standard

“Section 473(b) provides for both discretionary and mandatory relief. [Citation.]” (Pagnini v. Union Bank, N.A. (2018) 28 Cal.App.5th 298, 302.) Defendant seeks relief under the mandatory provision of the statute based on his counsel’s mistake, inadvertence, surprise, or neglect. The mandatory provision states in pertinent part:

“[W]henever 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, 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.”

(CCP § 473(b).)

“The purpose of this mandatory relief provision is to alleviate the hardship on parties who lose their day in court due to an inexcusable failure to act by their attorneys. [Citation.]” (Rodriguez v. Brill (2015) 234 Cal.App.4th 715, 723, emphasis added.)

Discussion

1. Timeliness of Motion

The six-month limitation period for mandatory relief under CCP § 473(b) commences at the time default judgment is rendered, rather than earlier when a default is entered. (Sugasawara v. Newland (1994) 27 Cal.App.4th 294.)  

Here, because defendant brought the instant Motion within two months of the entry of default judgment, it is timely under CCP § 473(b).

B.   Merits of Motion

Defendant’s counsel declares he was retained on behalf of defendant on June 1, 2019, and upon his retention his staff and he inadvertently calendared the responsive pleading deadling for July 12, 2019. (Motion, Miretsky Decl. ¶ 4.) Additionally, defendant’s counsel declares he nor his client received copies of the Request for Entry of Default, Request for Entry of Judgment or the Judgment itself. (Id., Miretsky Decl. ¶ 7.) In opposition, plaintiff does not dispute the merits of the Motion. Plaintiff only discusses the amount of reasonable attorney’s fees that plaintiff should be awarded. The Court finds defendant’s counsel’s miscalendaring is a mistake warranting a vacating of default and default judgment.

“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.” (CCP § 473(b).) In opposition, plaintiff asserts she has incurred $2,875 in attorney’s fees and costs as a result of defendant’s failure to file a timely responsive pleading. (Opp., Mehrban Decl. ¶ 2.) Paintiff argues plaintiff’s counsel’s hourly billing rate of $475 is consistent with those of other Southern California attorneys with similar experience and with those of other national attorneys with similar experience. In reply, defendant asserts plaintiff’s counsel’s request is excessive in light of the default judgment amount of $5,065. Defendant contends plaintiff’s counsel’s fees and costs could have been avoided if plaintiff simply responded to defense counsel’s attempts to resolve this issue before necessitating the filing of the motion.

In light of the fact defendant’s relief is mandatory, plaintiff’s non-opposition of the merits of defendant’s motion, and defendant’s attempt to come to an agreement with plaintiff without requiring a motion, the Court finds plaintiff’s reasonable attorney’s fees and costs to be $712.50—1.5 hours at plaintiff’s counsel’s hourly rate of $475.

II. Conclusion & Order

For the stated reasons, the Motion is GRANTED. Defendant is ordered to pay plaintiff $712.50 within 10 days. Defendant is ordered to re-file the Answer

Moving party is ordered to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SMCdept94@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.