Tentative Rulings

Case Number: BC680913    Hearing Date: September 29, 2020    Dept: 58

Judge John P. Doyle

Department 58

Hearing Date: September 29, 2020

Case Name: Noil USA, Inc. v. Lincoln Transportation Services, Inc., et al.

Case No.: BC680913

Matter: Motion to Set Aside Default Judgment and Dismissal

Moving Party: Defendant/Cross-Complainant Lincoln Transportation Services, Inc.

Responding Party: Plaintiff/Cross-Defendant Noil USA, Inc.

Tentative Ruling: The Motion is granted in part. The Default/Default Judgment is set

aside. The order of dismissal remains in place.

The Court set an OSC re: “Strike Answer/Cross-Complaint of Lincoln Transportation Services for Counsel's Failure to Appear” for December 5, 2019.

On December 5, 2019, it became apparent at the OSC that counsel of record for Defendant— Albert Douglas Mastroianni—had become ineligible to practice law. The Court, thus, struck Defendant’s Answer, dismissed its Cross-Complaint, and dismissed Cross-Defendant Noil USA, Inc.

On January 22, 2020, the Court entered default judgment in favor of Plaintiff and against Defendant.

Defendant now seeks to set aside its default, default judgment, and the dismissal as to Cross-Defendant Noil USA, Inc. due to attorney fault.

Code Civ. Proc. § 473(b) provides in relevant part: “Notwithstanding any other requirements of this section, the court shall, 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 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. 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.”

“[A]n attorney affidavit of fault under the mandatory relief provisions of section 473, subdivision (b) need not include an explanation of the reasons for the attorney's mistake, inadvertence, surprise, or neglect.” (Martin Potts & Assocs., Inc. v. Corsair, LLC (2016) 244 Cal. App. 4th 432, 443.) Moreover, under this mandatory provision “it does not matter whether [counsel’s] neglect was excusable or inexcusable.” (Ibid.)

Noil argues that mandatory relief is inapplicable because a declaration is submitted only by Edward Muramoto who was not counsel of record at or before the time judgment was entered.

This lacks merit. Indeed, Code Civ. Proc. § 473(b) “only requires the affidavit be executed by an attorney who represents the client and whose mistake, inadvertence, surprise or neglect in fact caused the client's default or dismissal. The statute does not state that the affidavit must be signed by the ‘attorney of record’ in the civil action or by an attorney who has already appeared on behalf of the client.” (SJP Ltd. P'ship v. City of Los Angeles (2006) 136 Cal.App.4th 511, 517.) Here, Muramoto sufficiently provides he represented Defendant/Cross-Complainant as of November 20, 2019. (Muramoto Decl. ¶¶ 4, 10-12.)

Noil next argues it is not apparent that Muramoto solely caused the instant default, default judgment, and dismissal.

The Court disagrees. Muramoto provides that these events occurred because he miscalendared the December 5, 2019, hearing date and thereafter neglected to calendar the January 22, 2020, hearing pertaining to entry of default judgment. (Muramoto Decl. ¶¶ 17, 25.)

Noil argues Muramoto’s actions are inexcusable and tantamount to incompetence. But, as discussed, the mandatory provision of Code Civ. Proc. § 473(b) provides relief specifically for inexcusable neglect. (See, e.g., Martin Potts & Assocs., Inc. v. Corsair, LLC (2016) 244 Cal. App. 4th 432, 443.)

Noil lastly argues that the Motion is too late with respect to Noil’s dismissal as a Cross-Defendant; that is, the Motion was filed more than six months after Noil’s dismissal from the Cross-Complaint.

Defendant argues the Motion is timely because (1) the Motion seeks only mandatory relief and (2) was filed within six months of the January 22, 2020, default judgment in this action. (Sugasawara v. Newland (1994) 27 Cal.App.4th 294, 297.)

It seems the Motion is untimely with respect to Cross-Defendant’s dismissal. The Court’s January 22, 2020, default judgment relates only to the Complaint in this action and not the Cross-Complaint. Further, in dismissing Cross-Defendant Noil, the Court entered a signed, written order which constitutes a judgment. (Younessi v. Woolf (2016) 244 Cal.App.4th 1137, 1142–43, [“All dismissals ordered by the court shall be in the form of a written order signed by the court and filed in the action and those orders when so filed shall constitute judgments and be effective for all purposes.”]; Lucky United Properties Inv., Inc. v. Lee (2010) 185 Cal.App.4th 125, 136–37 [“A written order of dismissal signed by the court constitutes a judgment and is effective for all purposes.”].) In other words, there are two separate judgments in this action: one with respect to Noil’s dismissal as a Cross-Defendant, and one as to Noil’s relief on its Complaint.

The Motion is timely with respect to the January 22, 2020, Default Judgment, but not the December 5, 2019, judgment of dismissal. Thus, the Motion is denied as to setting aside Cross-Defendant’s dismissal. On the other hand, Defendant has shown attorney neglect requiring that the January 22, 2020, default judgment be set side. (Code Civ. Proc. § 473(b).) The Motion is granted in part as set forth herein.

Case Number: BC680913    Hearing Date: January 22, 2020    Dept: 58

Judge John P. Doyle

Department 58

Case Name: Noil USA, Inc. v. Lincoln Transportation Services, Inc., et al.

Case No.: BC680913

The Default Judgment Application is denied because no admissible evidence was provided. Plaintiff’s counsel does not seemingly have personal knowledge of the damages suffered.