Case Number: 19VECV01814    Hearing Date: March 13, 2020    Dept: W

GOLDEN CONNECTIONS CORP. V. HAROUNI, ET AL.

MOTION TO VACATE DEFAULT

Date of Hearing:         March 13, 2020                       Trial Date:       None set.

Department:               W                                             Case No.:         19VECV01814

Moving Party:             Defendants Homayon Harouni and P & D Center, LLC

Responding Party:       Plaintiff Golden Connections Corp. DBA Medco Farmers

BACKGROUND

On December 19, 2019, Plaintiff filed a complaint against Defendants Homayon Harouni and P&D Center, LLC. Defendant P&D Center LLC is the owner of the subject premises.  Plaintiff alleges it was in actual and peaceful possession of the subject premises until December 14, 2019. Plaintiff alleges Defendants forcibly entered Plaintiff’s premises, without Plaintiff’s consent and not pursuant to legal process by cutting the locks and physically barring entry to the premises. Plaintiff alleges Defendants have remained and continue to remain in possession of the premises.

On December 31, 2019, default was entered against Defendants Homayon Harouni and P&D Center, LLC. Default judgment has not been entered.

[TENTATIVE] RULING

Defendants Homayon Harouni and P&D Center, LLC Motion to Vacate Default is GRANTED.

DISCUSSION

Defendants Homayon Harouni and P&D Center, LLC move this court for an order to vacate default/default judgment pursuant to CCP §473(b).

CCP § 473(b) provides, in relevant part that the court may “relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” A copy of the answer or other pleading proposed to be filed must accompany the motion requesting relief under CCP § 473(b).  The application for this relief must be made “within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (Ibid.)

Section 473 “is remedial in its nature and is to be liberally constructed.” (Reed v. Williamson (1960) 185 Cal.App.2d 244, 248.)  The statute’s purpose “is to promote the determination of actions on their merits.”  (Even Zohar Const. & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 839.)  “Even in a case where the showing under [CCP § 473] is not strong, or where there is any doubt as to the setting aside of a default, such doubt should be resolved in favor of the application.”  (Reedsupra, 185 Cal.App.2d at 249.)

The court initially notes the request for relief based on section 473(b) is timely. Defendants filed the motion to vacate default less than two months after default had been entered.

In the instant matter, counsel for Defendants submits a declaration of mistake, inadvertence, and/or excusable neglect in support of the motion to set aside default. Defense counsel declares on or about December 29, 2019, he agreed to represent Defendants in the instant matter and to file an answer on their behalf the next day, December 30, 2019. (Kaivan Decl. ¶¶2-3.) However, counsel mistakenly believed he had asked his associate, Rogi Sanchez, to file answer and Rogi Sanchez did not remember counsel asking him to draft and file an answer. (Kaivan Decl. ¶3.)

Counsel for Defendants also declares the default should have never been sought because 1) the lease agreement does not allow for civil litigation and 2) counsel for Plaintiff was aware that Defendants had already allowed Plaintiff back into the subject property. (Kaivan Decl. ¶5.) As such, the forcible detainer action was already moot when Plaintiff filed its request for entry of default on December 31, 2019. (Kaivan Decl. ¶5.)

In opposition, Plaintiff argues 1) since P&D Center, LLC has not paid its first appearance fee, the court cannot grant the motion as to P&D; 2) the attorney affidavit is insufficient because counsel was not retained until December 31, 2019 (the day after defendants’ deadline to respond) and counsel puts the blame on his associate, Rogi Sanchez; 3) defendants cannot make a litigation decision to enter default then seek relief under an  attorney affidavit of fault; and 4) any relief should be conditioned on payment of attorney fees in the sum of $3,150.00.

First, Defendant P&D Center, LLC has cured any defect by filing its appearance fees.

Second, the court finds defense counsel’s attorney affidavit sufficient. Given that CCP §473 is to be liberally construed, the court will not interpret defense counsel’s email to mean the attorney-client relationship was not formed until December 31, 2019. Defendant Homayon Harouni and defense counsel both declare, under penalty of perjury, that they met on December 29, 2019 and entered into an oral agreement that defense counsel would represent Defendant Homayon Harouni and P&D Center, LLC in the instant action and defense counsel would file an answer the next day. (Homayon Decl. ¶3; Kaivan Decl. ¶¶2, 3.) Defense counsel only informed Plaintiff’s counsel that he was retained by Defendants on December 31, 2019 because that was the day Defendant Homayon Harouni signed the representation agreement. (Reply Kaivin Decl. ¶5.) As such, defense counsel can seek relief from default based on counsel’s mistake, inadvertence, surprise, or neglect.

Moreover, Defense counsel has reasonably attested to the mistake, inadvertence, surprise or neglect. He does not need to include an explanation of the reasons for the attorney’s mistake, inadvertence, surprise, or neglect; rather, the attorney declaration must focus on the who, not why. (Martin Potts & Associates, Inc. v. Corsair, LLC (2016) 244 Cal.App.4th 432, 443.) Here, defense counsel declares he mistakenly believed he communicated to his associate that an answer needed to be filed on December 30, 2019. (Kaivan Decl. ¶3.) As a result, the answer was not timely filed and default was entered. (Kaivan Decl. ¶3.)

In reply, Defendants also offer the declaration of Sanchez, who declares something must have been miscommunicated because it is standard practice at Harouni Law Group that assignments are to be communicated in writing, either via email or placed upon a master calendar/assignment sheet. (Sanchez Decl. ¶2.) Upon checking his emails and reviewing the master calendar/assignment sheet, Sanchez did not see any email from defense counsel nor did he see the task on the master calendar. (Sanchez Decl. ¶2.)

Third, the court is unpersuaded by Plaintiff’s argument that defense counsel made a deliberate, tactical choice to allow his clients to enter default then seek relief under the attorney affidavit of fault requirements.  In light of defense counsel’s declaration, relief from the default is mandatory. Defense counsel has also attached a copy of Defendants’ proposed answer to Plaintiff’s verified complaint.

Finally, the court declines to grant Plaintiff’s request pursuant to CCP § 473(c)(1)(A)-(C) for an order that as a condition to setting aside the default Harouni be ordered to pay attorney fees in the amount of $3,150.00. The court may not condition an order setting aside a default on payment of sanctions or fees by the erring attorney or party.   (CCP Section 473(c)(2).   Nonetheless, when the court grants relief from default based on “an attorney’s affidavit of fault,” the court shall “direct the attorney to pay reasonable compensatory legal fees and costs to the opposing counsel or parties.”  (C.C.P. Section 473(b).   In the instant case, the court finds that plaintiff’s counsel could have avoided much of the expense incurred relating to the default by communicating with defendant’s counsel.  Further, the $3500 which is sought in fees is an unreasonable amount given this default should have been set aside by mutual agreement.  Nonetheless, the court orders defense counsel to pay fees of $1000 as a reasonable sum to compensate plaintiff for the costs incurred due to defense counsel’s admitted error.

In sum, the court grants Defendants Homayon Harouni and P&D Center, LLC’s Motion to Set Aside Default and orders defense counsel to pay $1000 as fees and costs to plaintiff’s counsel within 30 days.