Defendants Dennis D’Alessio, Newport Harbor Ventures, LLC, and D’Alessio Investments, LLC’s motion to set aside the default that was entered on February 15, 2017, is granted.
Code of Civil Procedure section 473, subdivision (b) permits a court to grant relief from a judgment, dismissal, order or other proceeding taken against a party on the grounds of “mistake, inadvertence, surprise or excusable neglect.”
There is a strong policy in favor of resolution of cases on their merits; doubts should be resolved in favor of relief from default. (Jade K. v. Viguri (1989) 210 Cal.App.3d 1459, 1473.) Where the moving party has moved promptly and there is no prejudice to the opposing party, “very slight evidence will be required to justify a court in setting aside the default.” (Elston v. City of Turlock (1985) 38 Cal.3d 227, 233.) Relief from default is mandatory when a timely motion is made “accompanied by an attorney’s sworn affidavit attesting to his or her mistake…” (Code Civ. Proc., § 473, subd. (b).) Here, defense counsel filed an affidavit of fault, explaining his mistake in thinking that a responsive pleading was not necessary due to his expectation of settlement. This constitutes a mistake warranting relief from default.
Plaintiffs’ request for an order directing defense counsel to pay compensatory legal fees and costs is granted in part. Defendants’ motion could have been avoided had Plaintiffs not required Defendants to only file an Answer. Therefore, the legal fees and costs of $4,322.86 are unreasonable. The court orders Knypstra Hermes LLC to pay a total of $893.86 in reasonable compensatory legal fees and costs to The Ring Law Firm APLC, no later than June 19, 2017. (Code Civ. Proc., § 473, subd. (b).)
Counsel should be prepared to discuss proposed deadlines as to responsive pleadings, so that the parties can comply with Code of Civil Procedure section 430.41’s requirement that the parties meet and confer prior to the filing of a demurrer.
Defendants shall give notice of the ruling.