Notice Of Motion To Set Aside Default And For Leave To Defend Action
Matter on Calendar for Monday, August 11, 2025, Line 6, DEFENDANT CINTA AVEDA INSTITUTE, INC.'S Motion To Set Aside Default And For Leave To Defend Action; **First Appearance Fees Paid**.
The motion to set aside default and for leave to defend is granted. Code of Civil Procedure, section 473 subdivision (b) states in relevant part, "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 . . . resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment . . . 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."
Defendant Cinta Aveda Institute shows that its counsel Aaron McClellan failed to investigate service or timely answer after he was retained within the period to answer. (McClellan Dec. paras 2-3.) On these facts, McClellan's mistake caused the default and relief is mandatory. Cinta Aveda Institute shall file a responsive pleading within 20 days of entry of this order.
Payment of opposing counsel's fees is also mandatory. Cinta Aveda Institute objects to the reasonableness of the hourly rate but does not substantiate the objection. The court reduces the fee amount regardless based on its evaluation of the reasonableness of the claimed fees. Cinta Aveda Institute was plainly entitled to relief under the statute and defendant's insistence on a motion unnecessarily increased costs for both parties. The court orders McClellan to pay $800 to Advance 360 within 30 days of entry of this order.
For the 9:00 a.m. calendar, all attorneys and parties may appear in Department 301 remotely or in person. Remote hearings will be conducted by videoconference using Zoom. (Dept. 301 Zoom ID 161 502 4290; Passcode 700956.) To appear remotely at the hearing, go to the court's website at sfsuperiorcourt.org under "Online Services," navigate to "Tentative Rulings," and click on the appropriate link, or dial the corresponding phone number.
Any party who contests a tentative ruling must send an email to contestdept301tr@sftc.org with a copy to all other parties by 4pm stating, without argument, the portion(s) of the tentative ruling that the party contests. The subject line of the email shall include the line number, case name and case number. The text of the email shall include the name and contact information, including email address, of the attorney or party who will appear at the hearing.
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Counsel for the prevailing party is required to prepare a proposed order which repeats verbatim the substantive portion of the tentative ruling and must email it to contestdept301tr@sftc.org prior to the hearing even if the tentative ruling is not contested.
The court no longer provides a court reporter in the Law & Motion or Discovery Department. Parties may retain their own reporter, who may appear in the courtroom or remotely. A retained reporter must be a California certified court reporter (CSR), for only a CSR's transcript may be used in California courts. If a CSR is being retained, include in your email all of the following: their name, CSR and telephone numbers, and their individual work email address. =(302/CVA) |