STACY R KELLY V. SANDPIPER PROPERTY MANAGEMENT

Case Number

24CV00084

Case Type

Hearing Date / Time

Fri, 08/16/2024 - 10:00

Nature of Proceedings

Motion to set aside default

Tentative Ruling

The motion is granted, and the default entered against defendants Sandpiper Property Management, Inc. on February 14, 2024, is ordered vacated and set aside. Sandpiper shall file its responsive pleading forthwith.

BACKGROUND: Plaintiff Stacy R. Kelly (Kelly), acting in pro per, filed the complaint in this action on January 8, 2024. The complaint purports to set forth causes of action against defendant Sandpiper Property Management [Inc.] (Sandpiper) for negligence, breach of contract, breach of the implied warranty of habitability, nuisance, negligent infliction of emotional distress, and constructive eviction.

Kelly filed a proof of service which provides that Sandpiper was personally served with the summons and complaint on January 9, 2024, through service upon its receptionist. On February 14, 2024, Kelly filed a Request for Entry of Default, and the default of Sandpiper was entered by the Court Clerk on that date.

Also on February 14, 2024, defendant in this matter, Sandpiper, filed a limited Residential Unlawful Detainer Complaint against Kelly (Case No. 24CV00822). After Sandpiper’s attempts to personally serve Kelly with the Summons and Unlawful Detainer Complaint were unsuccessful, it on March 12, 2024, obtained an order permitting it to serve Kelly by posting on the property in a manner most likely to give notice, with follow-up mailing by certified mail. Kelly answered the complaint on that same date.

On May 9, 2024, Sandpiper filed the current motion to set aside the default entered against it in Case No. 24CV00084.

Trial of the unlawful detainer action, at which Kelly failed to appear, was conducted on May 23, 2024. After presentation of evidence, the Court entered judgment against Kelly in the amount of $30,218.00, with damages of $101.00 to accrue beginning May 1, 2024. It further issued a Writ of Possession for the property at issue.

Motion: Defendant Sandpiper has moved to set aside the default taken against it by Kelly, and to permit it to file the Demurrer it attaches as Exhibit A to the motion. The motion is based upon the mandatory “attorney fault” provision of Code of Civil Procedure section 473(b), because the default was entered as the result of the mistake, inadvertence, surprise, or excusable neglect of Sandpiper’s attorney, and also under the discretionary provisions of Section 473(b), because the attorney’s neglect was excusable under applicable law.

Sandpiper presents evidence, in the form of the declaration of its counsel, Robert B. Forouzandeh, that it is the property manager for property at 350 Highland Drive, # 4, which is at issue in the action. When the action was served upon Sandpiper, Sandpiper itself (and not its counsel) tendered the complaint to the property owner’s insurance carrier, believing that the carrier would provide defense to the claims alleged in the complaint. Sandpiper’s president advised counsel that the carrier would be handling the matter, and that counsel need not take any further action. Because counsel believed the carrier would respond to the complaint on Sandpiper’s behalf, counsel did not track the responsive pleading deadline, and did not file a responsive pleading. The carrier did not respond until after default had been taken, and Sandpiper notified its counsel that the carrier had rejected coverage.

Sandpiper notes that Kelly had been in contact with Sandpiper’s counsel, and was aware that Sandpiper was represented by counsel, but requested entry of Sandpiper’s default without warning, having served the Request for Entry of Default on counsel and not on Sandpiper directly.

After the default was entered, counsel contacted Kelly on February 20, about a possible stipulation to set aside the default. An attorney who is not of record for Kelly, Susan Lea, contacted Sandpiper’s counsel on February 26 in response, and indicated that Kelly would stipulate to set aside the default. When pressed on when the stipulation would be signed, Ms. Lea told Sandpiper’s counsel that Kelly was “too stressed out’ and could not respond for a week or so. No further communication was received from the attorney, and Kelly subsequently told Sandpiper’s counsel that the attorney did not represent her. After an April 2024, hearing in the unlawful detainer action, counsel spoke to Kelly in the hallway to ask if she would globally resolve both matters, or set aside the default voluntarily. She responded that she would think about a global settlement offer, but would not set aside the default. She never made a settlement offer.

Sandpiper cites the provisions of Code of Civil Procedure section 473 related to mandatory relief from default upon presentation of an attorney’s affidavit of fault acknowledging responsibility for entry of the default, and asserts that its counsel’s accompanying declaration acknowledges that the default was the result of his own mistake, inadvertence, surprise or neglect. Sandpiper argues further that the fact that plaintiff gave no warning before requesting default also supports relief from the default, citing Code of Civil Procedure section 583.130 and LaSalle v. Vogel (2019) 36 Cal.App.5th 126, 136. It asserts further that the request is timely made, noting that a portion of the delay in bringing the motion was attributable to its counsel’s communications with an attorney purporting to represent Kelly. There will be no prejudice to Kelly if relief is granted, particularly since the first Case Management Conference has yet to occur.

Kelly has not opposed the motion.

ANALYSIS: The motion is granted, and the default entered against defendants Sandpiper Property Management, Inc. on February 14, 2024, is ordered vacated and set aside. Sandpiper shall file its responsive pleading forthwith.

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

(b) 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. . . .

Sandpiper has sought relief from the default entered against it on February 14, 2024. A copy of its proposed responsive pleading—a demurrer to the complaint—is properly attached as an exhibit to the motion. The motion is supported by the declaration of Sandpiper’s counsel, in which he acknowledged that the entry of default resulted from his own mistake, inadvertence, surprise, or neglect, given that he did not calendar or prepare a responsive pleading because he believed the carrier would be responding on Sandpiper’s behalf. Under such circumstances, relief from the default is made mandatory under the terms of Section 473(b), regardless of whether counsel’s neglect was or was not excusable.

For these reasons, the Court will grant the motion for relief from default, and will direct Sandpiper to file its responsive pleading forthwith.