Motion to Set Aside/Vacate Default
Moving Party: Defendant Deborah Clark
Responding Party: Plaintiff Edward L. Clark Jr.
Ruling: Defendant’s motion to set aside default is granted.
Code Civ. Proc. § 473(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.” Code Civ. Proc. § 473(b) permits a court to grant two types of relief. (Leader v. Health Industries of Am., Inc., 89 Cal. App. 4th 603, 615 (2001).) A court may grant discretionary relief upon the moving party’s showing of mistake, inadvertence, surprise or excusable neglect. (Id. at 615-616.) A court must grant mandatory relief upon a showing by an attorney declaration of mistake, inadvertence, surprise or neglect. (Id. at 616.)
Here, Defendant’s counsel has made a showing of inadvertence on the part of defense counsel warranting mandatory relief. Defendant’s counsel apparently attempted to negotiate a stipulation to set aside the default with different attorneys for Plaintiff but was unsuccessful. Accordingly, the motion is granted, and the default entered on September 3, 2019 is vacated.
Defendant is to file the proposed responsive pleading within 7 days of this ruling.
In granting relief based on an “attorney affidavit of fault,” the court must “direct the attorney to pay reasonable compensatory legal fees and costs” to the opposing counsel or parties. (Code Civ. Proc. § 473(b).) Here, the application for relief was based in part on an attorney affidavit of fault. Plaintiff’s counsel has not submitted any evidence regarding the “reasonable compensatory legal fees and costs to opposing counsel or parties.” In the absence of such a showing, the recommendation is to order Defendant’s counsel to pay $500 as a reasonable amount of legal fees and costs to Plaintiff’s counsel, payable within 30 days.
Defendant to give notice.