Case Number: SC124770 Hearing Date: January 31, 2019 Dept: K

CASE NAME: Goldshtadt v. Anderton

CASE NO.: SC124770 COMPLAINT FILED: 9-18-15

HEARING: Thursday, January 31, 2019 MOTION C/O: None

CALENDAR #: DISCOVERY C/O: None

NOTICE: ok TRIAL DATE: None

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SUBJECT: Motion to Vacate Default and to Set Matter for Trial

MOVING PARTY: Defendant Craig Anderton

RESP. PARTY: [none]

BACKGROUND

Plaintiffs alleges they and defendants entered into a residential purchase agreement pursuant to which defendants agreed to buy certain real property in exchange for payment of $2,000,000.00. However, defendants breached the agreement by failing to close escrow pursuant to the terms of the contract. Plaintiffs also allege defendants agreed to lease the property for a certain period of time, but vacated it without paying the total rent due.

Defendant Lynne Anderton cross-complained against Plaintiffs and her former real estate broker, arguing the property was contaminated with toxic mold, which harmed her, and that her real estate agent prepared the contract documents incorrectly.

On October 15, 2018, Plaintiffs prevailed at trial because defendants did not appear.

FAC: (1) breach of purchase contract; (2) breach of lease.

XC: (1) negligence – personal injury; (2) negligence – malpractice.

This Motion: Defendant Craig Anderton moves for an order vacating his default and setting the matter for trial.

TENTATIVE RULING

Defendant Craig Anderton’s Motion to Vacate Default and to Set Matter for Trial is GRANTED.

The October 15, 2018 judgment against Defendant Craig Anderton is vacated as of this date. The matter is set for trial on _____________________, 2019.

Defendant Craig Anderton to give notice.

REASONING

Whenever an application for relief is made no more than six (6) months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit of fault attesting to his/her mistake, inadvertence, surprise or neglect, the court “shall” vacate the resulting default, default judgment or dismissal. (Code Civ. Proc., § 473, subd (b).) “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.” (Code Civ. Proc., § 473, subd. (b).)

Here, Defendant Craig Anderton (“Defendant”) moves to vacate the default and judgment entered against him on October 15, 2018. Defendant’s motion is timely, as he filed it on January 8, 2019, i.e. less than six months after the October 15, 2018 judgment.

Defendant submits a declaration from his attorney. Counsel explains he mistakenly believed his appearance on October 15, 2018 was not required—he appeared ex parte on October 12, 2018, requesting the Court continue or trail the trial to allow him to make an appearance in Oakland on October 15, 2018. (Mtn., Moest Decl., ¶¶ 2-3.) While Judge Rosenberg denied counsel’s ex parte request, counsel represents Judge Rosenberg stated he expected an ongoing trial not to conclude until October 17, 2018. (Id., ¶ 3.) According to counsel, Judge Rosenberg advised counsel to call in on October 15, 2018 to remind the court counsel was engaged in Oakland. (Ibid.)

Counsel called on October 15, 2018 as directed, spoke to the judicial assistant, and was told nothing about the other trial. (Id., ¶ 5.) Counsel checked in on October 16, 2018, and learned this matter was no longer on calendar. (Id., ¶ 6.) He then heard nothing else until November 6, 2018, when he received a copy of a proposed judgment. (Ibid.)

The Court finds defense counsel’s declaration adequately attests to his mistake, inadvertence, surprise, or neglect in not attending the October 15, 2018 trial. None of the other parties opposed this motion. In other words, no one argued what “reasonably compensatory legal fees and costs” defense counsel should pay to the other parties. Therefore, the Court will not require counsel to make any such payments.

For these reasons, Defendant Craig Anderton’s Motion to Vacate Default and to Set Matter for Trial is GRANTED.