This case was last updated from Los Angeles County Superior Courts on 06/27/2017 at 10:15:54 (UTC).

BENJAMIN SANDOVAL VS CARMEN FLORES DAVIS ET AL

Case Summary

On 06/26/2017 BENJAMIN SANDOVAL filed a Personal Injury - Motor Vehicle lawsuit against CARMEN FLORES DAVIS. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The case status is Pending - Other Pending.

Case Details Parties Dockets

 

Case Details

  • Case Number:

    ****6408

  • Filing Date:

    06/26/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Motor Vehicle

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

 

Party Details

Plaintiff and Petitioner

SANDOVAL BENJAMIN

Defendants and Respondents

MENDEZ CARMEN

DOES 1 TO 100

DAVIS CARMEN FLORES

Attorney/Law Firm Details

Plaintiff and Petitioner Attorney

HECKMANN ROSS S.

Court Documents

Court documents are not available for this case.

 

Docket Entries

  • 06/26/2017
  • Complaint

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Tentative Rulings

Case Number: BC666408    Hearing Date: December 17, 2019    Dept: 94

MOTION TO SET ASIDE DEFAULT AND FOR LEAVE TO DEFEND ACTION

(CCP § 473)

TENTATIVE RULING:

Defendants Carmen Flores Davis and Carmen Mendez’s Motion to Set Aside Default and for Leave to Defend Action is GRANTED.

OPPOSITION: Filed December 5, 2019 [X] Late [ ] None

REPLY: None filed as of December 11, 2019 [ ] Late [X] None

Background

On June 26, 2017, Plaintiff Benjamin Sandoval (“Plaintiff”) filed personal injury action against Carmen Flores Davis (“Davis”) and Carmen Mendez (“Mendez”) (collectively, “Defendants”). On December 11, 2018, the case was reclassified from Civil Unlimited, to Civil Limited.

On July 15, 2019 default was entered as to Davis. On July 24, 2019, default was entered as to Mendez. On October 17, 2019, Defendants filed this Motion to Set Aside Default and for Leave to Defend Action (the “Action”). Plaintiff filed a late Opposition on December 5, 2019.

To date, Plaintiff has not filed a reply.

II. Legal Standard & Discussion

  1. CCP § 473(b)

“Section 473(b) provides for both discretionary and mandatory relief. [Citation.]” (Pagnini v. Union Bank, N.A. (2018) 28 Cal.App.5th 298, 302.) Plaintiff seeks relief under the mandatory provision of the statute based on its 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.”

(Code Civ. Proc., § 473 subd. (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.) Relief under Code of Civil Procedure section 473 subdivision (b) is also available to plaintiffs because dismissal is the “practical equivalent of a default judgment.” (Aldrich v. San Fernando Valley Lumber Co., Inc.

In this case, there appears to have been confusion as to the case number of the Plaintiff’s complaint. The complaint, as served on Defendants, bear the number “BC666408.” (Hakopian Decl., Exh. 2.”) At some point, the court’s website did not reflect this BC666408 as the case number for this action. (Id., ¶ 4.) Defendants’ Answer filed on July 12, 2019 was rejected due to an incorrect case number. (Id., ¶ 7.) Defendants do not provide a copy of the clerk’s rejection notice stating the reason for the rejection. Defendants then re-filed the Answer on July 24, 2019.

Defendants argue they are entitled to relief under this section because the motion was filed within six months of Defendants’ entry of default and is supported by a declaration from Defendants’ counsel stating the entry of default was based on counsel’s inadvertence by placing the incorrect case number on the Answer. (Mot., p. 4; Hakopian Decl., ¶ 7.) Plaintiff argues Defendants are not entitled to have the entry of default set aside because Defendants’ conduct in using an erroneous case number was willful, because Defendants’ evidence was not properly authenticated, because the entries of default were filed prior to the Answer being filed, and because Defendants’ counsel was dishonest about his meet and confer efforts regarding the issue of default. (Oppo., p. 3-9.)

These arguments are not relevant to a motion under section 473 subdivision (b). All that is required for mandatory relief under this section is that the motion be brought within six months of entry of default and an affidavit attest to their mistake, inadvertence, surprise, or neglect, both of which are met here. Indeed, section 473(b) “indicates what must be attested to is the mistake, inadvertence, surprise, or neglect – not the reasons for it. [Citation.]” (Martin Potts & Associates, Inc. v. Corsair, LLC (2016) 244 Cal.App.4th 432, 438.) Additionally, this is not a case where Defendants were completely inactive. Indeed, Defendants’ counsel attempted to file the Answer on July 12, 2019, prior to the deadline, but ultimately was unable to due to a confusion with the case number.

In light of the foregoing, the Court finds that the dismissal was a result of Plaintiff’s counsel’s mistake, inadvertence, surprise, and neglect. Accordingly, the Court has no discretion but to grant the Motion under the mandatory provision of Section 473(b).

  1. Fees

When the court grants relief based on an attorney’s affidavit of fault, the at-fault attorney must pay reasonable compensatory legal fees and costs to opposing counsel or parties. (Code Civ. Proc., § 473, subd. (b).)

Because relief is being granted based on Defendants’ counsel’s declaration of inadvertence, fees are mandatory for Plaintiff. Plaintiff’s attorney states he is entitled to fees and costs totaling $2,115.95 which include 10 hours of attorney time to prepare two requests for entry of default, reviewing and responding to Defendants’ communications, reviewing and preparing the Opposition, reviewing an anticipated reply, and preparing for and attending the hearing on this Motion at $200.00 per hour (Oppo. Heckmann Decl., ¶ 12.) Plaintiff also requests costs of $115.95 for filing and certified copy costs. (Id.) The Court finds this amount to be excessive. The Court awards $915.95 based on four hours of attorneys’ time plus filing and certified copy costs.

III. Conclusion & Order

Defendants Carmen Flores Davis and Carmen Mendez’s Motion to Set Aside Default and for Leave to Defend Action is GRANTED.

Moving parties are 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.