Haley Christina Thomas et al vs Jill Dore-Kent

Case Number

23CV02376

Case Type

Hearing Date / Time

Fri, 03/07/2025 - 10:00

Nature of Proceedings

CMC; Motion to Set Aside

Tentative Ruling

:  For the reasons more fully articulated below, and under the terms and conditions set forth below, the motion will be granted, and the court will order that the default entered against the cross-defendants be vacated. Cross-defendants are directed to file their responsive pleading to the cross-complaint no later than March 21, 2025.

Procedural Background: Following the resolution of defendants’ pleading challenges to the complaints filed by plaintiffs against them, defendants Jill Dore Kent and Martin Mielko on September 25, 2024, filed their Answer to plaintiffs’ Third Amended Complaint, and at the same time Jill Dore Kent (and not co-defendant Mielko) filed a Cross-Complaint against plaintiffs. These documents were electronically served upon plaintiffs and cross-defendants on September 26, 2024.

On November 5, 2024, the court entered cross-defendants’ default on the cross-complaint.

On December 10, 2024, Kent filed a CMC statement, in which she noted that the cross-defendants were currently in default, and that a request for default judgment would be filed before the scheduled December 13, 2024, CMC.

On December 11, 2024, cross-defendants filed the current motion to set aside the default.

Motion: The motion by plaintiffs/cross-defendants to set aside the default entered against them is made on the ground that the default was the product of attorney error and mistake. As set forth in the supporting declaration of Edward M. Higginbotham, counsel for plaintiffs, he and his co-counsel were involved in trial on October 7, 2024, in Alameda, when he received a call that his mother had been hospitalized. The jury trial was suspended, and his mother passed away the same day, while he was waiting for his flight. He was forced to drop everything and fly to Las Vegas in order to deal with the passing of his mother. He did not return to the office until October 22. The answer to the cross-complaint was due on October 25, 2024. He filed an answer on November 4, 2024, but it was not filed because Kent’s counsel had submitted his Request for Entry of Default on the same date, four hours prior. On November 6, he received notice that the answer had been rejected because of the filing of the Request for Entry of Default. On November 13, he reached out to counsel for Kent about stipulating to set aside the default. Kent’s counsel responded the next day, conditioning his signing of a stipulation to set aside entry of default on plaintiffs making an offer of settlement to defendant, indicating that defendant would require such an offer before considering a stipulation. Because he was unable to reach an agreement to set aside the default, cross-defendants were forced to file this motion.

The memorandum of points and authorities asserts that any error was due to inadvertence and mistake of counsel in the face of a family death, and contends that cross-defendants are entitled to relief from the default under Code of Civil Procedure section 473(b), because of their attorney’s mistake, inadvertence, surprise or neglect. They further contend that the cross-complaint is defensible, and but for the mistake of plaintiff’s counsel, they would likely be able to successfully demur to the cross-complaint.

Opposition: Cross-complainant Kent has opposed the motion, on several grounds. First, she contends the motion was not served on her, and the hearing should be postponed until it is served. Second, she contends that cross-defendants have not identified any specific facts which show mistake, inadvertence or excusable neglect, and should be denied.

Kent asserts that the response to the cross-complaint was due on October 25, 2024, and on Friday, November 1, her counsel emailed opposing counsel stating that she would seek a default if responsive papers were not filed by the close of business on November 4, 2024 (the following Monday). He received no response. Neither attorney ever requested an extension of time to respond. On November 5, default was entered, and Kent’s counsel served it upon opposing counsel the same day. Cross-defendants’ counsel filed their motion 11 days later.

Kent asserts that the motion does not show any excusable neglect, mistake, or surprise, as those terms are understood within the meaning of a Section 473(b) motion. Kent further asserts that cross-defendants’ ability to defend the claims is not relevant to the motion. Finally, Kent contends that she would be prejudiced by the grant of the motion.

No reply papers were filed.

ANALYSIS: For the reasons more fully articulated below, the motion will be granted, on condition that cross-defendants’ counsel pay to cross-complainant’s counsel for two hours of attorney time at cross-complainant’s counsel’s ordinary rate, no later than March 21, 2025. The Court directs counsel for cross-complainant to advise the Court at the hearing of this motion what his ordinary hourly rate is for litigation such as this. The Court will order that the default entered against cross-defendants on the cross-complaint be vacated, and direct counsel for cross-defendants to file their responsive pleading no later than March 21, 2025.

In the event that the fees are not paid, the Court will entertain a request strike any such responsive pleading, and reenter the default.

1.         Standards for relief from default pursuant to Code of Civil Procedure section 473(b).

Code of Civil Procedure section 473(b) provides, in relevant part:

The court may, upon any terms as may be just, 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. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken. . . . 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. . . .

The reference in Section 473(b) to "judgment, order, or other proceeding" includes the entry of default. (Zellerino v. Brown (1991) 235 Cal.App.3d 1097, 1104.)

When an attorney affidavit of fault is filed, there is no requirement that the attorney’s conduct be excusable, and relief must be granted even where the default resulted from inexcusable neglect. (Jimenez v. Chavez (2023) 97 Cal.App.5th 50, 57-58.) The purpose of the provision is to alleviate the hardship on parties who lose their day in court due solely to an inexcusable failure to act on the part of their attorneys. (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 257.) The only limitation on the provision is that the court may deny relief if it finds the default was actually caused by the client, and not by the attorney’s mistake, inadvertence, surprise, or neglect. (Jiminez v. Chavez, supra, 97 Cal.App.5th at p. 57.)

Where no attorney affidavit of fault is filed, a party moving for relief on the basis of mistake, inadvertence, surprise, or excusable neglect, must show specific facts demonstrating that one of those conditions was met. (Hopkins & Carley v. Gens (2011) 200 Cal.App.4th 1401, 1410.) Under Section 473(b), "surprise" refers to some condition or situation in which a party is unexpectedly placed to his injury, without any default or negligence of his own, which ordinary prudence could not have guarded against. (Credit Managers Association of Southern California v. National Independent Business Alliance (1984) 165 Cal.App.3d 1166, 1173.) .) “Mistake” can refer to a mistake of fact or law, but in either case, it must be material. (Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2024) § 5:311.) "Excusable neglect" essentially exists where the moving party has shown a reasonable excuse for the default, i.e., that it could not have been avoided through the exercise of ordinary care. The acts which brought about the default must have been the acts of a reasonably prudent person under the same circumstances. (Jackson v. Bank of America (1983) 141 Cal.App.3d 55, 58.)

Section 473(b) is applied liberally where the party in default moves promptly to seek relief, and the party opposing the motion will not suffer prejudice if relief is granted. In such situations, very slight evidence will be required to justify a court in setting aside the default. Moreover, because the law strongly favors trial and disposition on the merits, any doubts in applying section 473 must be resolved in favor of the party seeking relief from default. (Grappo v. McMills (2017) 11 Cal.App.5th 996, 1005.)

2.         Analysis

First, while the issue does not impact the court’s analysis of this motion in any way, the Court will note that both parties erred in stating that the responsive pleading was due to be filed on October 25, 2025. The 30-day time period to respond to a cross-complaint runs from its service. (Code Civ. Proc., § 432.10.) While the cross-complaint may have been filed on September 25, 2025, it was not served until September 26, 2025, and at that time was served electronically upon attorney Workman. Pursuant to Code of Civil Procedure section 1010.6(a)(3)(B), any duty to make a response after service of a document electronically is extended by two court days. Thirty days after September 26 was October 26, 2024, a Saturday. Since it was served electronically upon cross-defendants, the time to respond was extended by two court days to Tuesday, October 29, 2024.

Proceeding to the merits of the motion, if it is characterized as a discretionary motion under Section 473(b), under which a party moving for relief on grounds of mistake, inadvertence, surprise, or excusable neglect must show specific facts demonstrating that one of those conditions was met, the declaration in support of the motion is somewhat thin on supporting facts. The Court is most sympathetic to counsel’s unexpected loss of his mother, and unexpected trip to handle her affairs. He returned from the trip approximately a week prior to the deadline to file a responsive pleading, however, and his declaration contains no information which would establish his inadvertence, surprise, mistake, or excusable neglect during that period. Had he provided any such information, such as the difficulty he might have had in addressing the workload he was left with as a result of his unexpected absence, or the impact on his practice arising from his state of mind following the sudden loss of his mother, the Court might be inclined to find that his failure to timely respond resulted from his inadvertence or excusable neglect. However, the information provided to the Court by counsel is insufficient to meet that standard.

On the other hand, the motion makes clear that the failure to timely respond was the fault of cross-defendants’ attorney, and not cross-defendants themselves, and expressly sets forth that it is being made based upon his “mistake, inadvertence, surprise, or neglect”, without ever mentioning the term “excusable neglect.” Consequently, the motion can equally validly be characterized as one based upon the attorney’s declaration of fault, in which relief from default is mandatory.

In opposition, Kent contends that cross-defendants’ unduly delayed seeking relief from the default, but the 11-day delay she identifies is miniscule and virtually meaningless in the context of the litigation. Kent also complains that she would be prejudiced should the default be vacated, but makes no attempt to articulate or identify any cognizable prejudice, and the Court can discern none.

Certainly, Section 473(b) requires that, whenever relief is granted based upon an attorney’s affidavit of fault, the trial court “shall” direct that attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties. In this case, the Court cannot find that opposing counsel has sustained much, if any, “reasonable” compensatory legal fees and costs arising from the motion. The Court would find, however, that an amount equal to two hours of attorney time, billed at Kent’s counsel’s ordinary rate, would more than compensate Kent’s counsel for any “reasonable” compensatory legal fees incurred, under the circumstances presented.

Consequently, so long as counsel for cross-defendants is willing to pay Kent’s counsel for two hours of attorney time, billed at counsel’s ordinary rate for litigation of this sort, the Court will grant the motion pursuant to the mandatory relief provisions applicable to circumstances where an attorney declaration of fault is submitted, and order the default to be vacated. Should this be the case, the Court would request Kent’s counsel to advise it at the hearing what his ordinary hourly rate is for matters such as this, and order that two hours at that rate be paid by counsel for cross-defendants forthwith, but in any event no later than March 21, 2025. Cross-defendants shall also file their responsive pleading no later than March 21, 2025, or such other date as this Court might specify at the hearing on the motion.

In the event that the fees are not paid, the Court would entertain a future request strike any such responsive pleading, and reenter the default.

If counsel is unwilling to pay the fees, the motion will be determined under the discretionary provisions, under which it will need to be denied, given the failure of the motion to show specific facts establishing the existence of surprise, mistake, or excusable neglect for the period after counsel’s return to his office, as those terms are understood within the context of Section 473(b).