Filed 7/28/23 CERTIFIED F OR PUBLI CATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNI A

SECOND APPEL L ATE DISTRICT

DIVISION EIGHT

STEVEN DOLLASE

,

Plaintiff and Res po ndent,

v.

WANU WAT ER INC.,

Defendant and Appellant

. B 31 4900

(Lo s Angeles Count y Super. Ct. N o. 19ST C V 19368 )

APPEAL from a post

judgment order of t he Superior Court of Los Angeles County. Barbara A nn Meiers

, Judge. Reve rsed
and remanded with directions

. Abt & Associates and Gregory D. Abt for Defendant and Appe llant.
Norton Rose Fulbrigh t U S , James H . Turken a nd Neil P.
Thakor for Pla i ntiff and R espondent.

______ ___________________2 SUMMARY
The trial court e ntered a default judgment against
defendant Wanu Water Inc. on June 16, 2020, and on
December 7, 2020 , defend a nt fi led a mot ion t o s et aside its
default and vacate the default judgment under the mand atory
, at torney

- fault provision of Code of Civil Procedure section 473, subdivision (b) (section 473 (b))

. The mandatory provision requires the court to vacat e the de f ault judgment if th e

a pplication is filed “ no more than six mo nths after ent ry of judgment, ” is “ i n proper form, ” and is accompanied by an attorney ’ s affidavit of fault , unless the court finds the default

“ was not in fact caused by ” the attorney ’ s mistake

, inad vertence,

surp ris e or neglect. ( Ibid .)
He re, the trial court denied defendant ’s motion and gave no

reason for its ruling. The record shows the filing was timely and was accompanied by an attorney ’ s affidavit of fault

. Thus

, the only bases for d enying t he motion to v aca te the default judgm ent

were that the application w as not “ in proper form ” o r that the
default “ was not in fact caused by ” the attorney ’ s n eglect. ( § 473( b ).) We have considered both possibilities and conclude

ne ither justi fies d enyi n g t he m otion.
Ac cordingly, th e d efault and the defau lt j udgment must be
vacated.
F ACTS
1

. The Court Filings: June 3, 2019 , to Aug ust 4, 2020 On June 3, 2019, plaintiff Steven Dollase filed a complaint against defendant alleg ing causes of acti on for brea c h of co ntract, f raud and conv ersi on. The pr oof of service of the summons and complaint s how ed perso nal s ervice b y Tina Irizarry of F irst Legal

on Fran ces Hernandez, National Registered Age nts, Inc.,3

Regist e re d Agent f

or defendant , at an addres s i n Dover

, D e la ware. On A ugust 2, 2019 , p l aintiff ’ filed a request for entry of default , and def

a ult was entered as requested on that date

. On February 24, 2020, plaintiff filed for entry of default ju dgment. On June 1 6, 202 0, judgment by default w as entered in the

amou nt of $702,526 .91. On August 4, 2020, the trial court issued a writ of

execut ion

, and plaintiff obtained $63,739.79 from defendant ’ s We lls Fargo Ban k account

. 2

. Defe n d ant ’ s Motion To Vac at e the Defau lt Judgment On Dece mber 7, 202 0, defendant f iled a motion to set aside
the d efault and vacate the default judgment. Defe ndant ’ s motion also requested an order qu ashing service of pro cess , an order stayin g any f

u r ther a ction to enforce the judgm ent, and an order

re quiring plaintiff to return $63,739 already obta ined by plaintiff

. Defendant based its motion on the mandatory provision of
section 473 (b), c ontending the default a n d default judgment were

en t e red as a result of the neglect o f defendant ’ s chief legal officer, John G rbic, as d etailed in his affidavit of fault

. Defendant a lso
relied on subdivision (d) of section 473, which permits a court to

set aside a void judgment , and on the court ’s “ inhere n t autho rity to vacate a default a nd default judgment on equitable grounds. ” And, de fendant conten d ed plaintiff submitted a false proof of
service.

a. Mr. Grbic ’ s affi davit of fault The affidavit of fault of defendant ’ s chief legal off icer,
M r. Grbic

, gi ves h is descr i ption of what happened between the time p l aintiff filed his co mplaint (June 3, 2019) and the time defendant moved to vacate the default ju dgment (December 7, 2020). That chronology is as follows.4 In mid

- July 2019, Mr . Grbic learned from one of defendant ’ s outs ide counsel that plaintiff had filed a summo ns and compl aint aga inst defendant

. H e did not know if or how service had bee n completed , and he did not inquire

, or take any
action to safeguard d efendant from h av ing a default entered again st it

. Mr. Gr bic li sted the actions he should have but did
not undertake. He state d h e was solel y re sponsible for the ac ts and omissions that resulted in the default and the default judgment. On Aug ust 2, 2019 ( th e sa me day def ault was ente r ed),
M r. Grbic e

- ma iled plaintiff ’ s counsel saying defendant had received w ord that a complaint was filed and was “ looking to
retain local counsel ” to handle the complaint ; Mr. Grbic a sk ed if he could provide pl aintiff ’ s counse l ’ s na me as the point of con tact wh e n counsel wa s retained

. O n August 8, 2019, plaintiff ’ s counse l respon ded affirmativel y, also tellin g Mr. G rbic a default ha d already been
entered

. Mr. Grbic responded that “ w e never r eceived s ervi ce ”
and that counsel “ will be in touch soo n. ” Plaintiff ’ s counsel responded (August 9) that “ we s erved your re g istere d agents in Delaware. ”
I n October 2019
, Mr. Grbic and plaintiff ’ s counsel began negotiations to settle the mat ter

. E

- ma ils attached to Mr. Grbic ’ s affid a vit reflect settlement communications beginning on October 10, 2019
, and cont in uing throug h January 27, 2020. The
record do es not contain a response to a counteroffer plaintiff
made on January 2 7, 2 020 , or any further e

- mail

com m un ications

. O n February 24, 2020, as already mentione d, plaintiff filed for entry of default judgment. Six month s lat er, on A ugust 28, 2020, Mr. Grb ic learned, to
his “ co mplete surp rise, ” that pl ai ntif f ’ s counsel had file d a defau l t5

package on February 24 and that plaintiff had obtained a default jud gment on June 16, 2020. He learned this when Wells Fargo Bank infor med him of the writ of execution pl aintiff ha d ob tained and tha t $63,7 39 .79 had been debited fro m defenda n t ’ s Wells Fargo Bank account. Plaintiff ’ s counsel di d not gi ve Mr. Gr bic notice of his intent to file the default package, and d id not mail Mr. Grbic any of the
notices the court sent to pl aintiff ’ s counsel r elatin g to t he hearing
on the de fault jud g ment or a copy of the judgment

. b. The Gregory Abt declarat ion
In addition to the Grbic affi davit of fault, defendant ’ s

m otion to vacate the d e fault judgment included a declaration from M r. A b t, o utsid e co unsel r et ained by defe ndant. M r

. Abt
d e c lared that on November 8, 2020

, as he was prep aring to f ile defendant ’ s m otion to vacate the default judgment

, he noticed
that the si gnature of the process server ( M s. Irizarry ) on the proof of s er vice “ did no t in any way sh ape o r form ” resemble her sig n a ture on the proof of service in another pending case in which he also represented defendant

. He then collected eight other

pro ofs of servic e signed by Ms. Irizarry from oth er states, and

attac hed t he se to his de cla r ation

, as sert i n g the person who signed the proof of service in this cas e was not the same person who signed the others. Defenda nt requested judi cial notice of all
the se proofs of service.
T he Abt declar at ion also stat es that “ [a ] ttache d as Exhibi t 7 to this declaration is [defendant ’ s] motion to quash

s ervice tha t will be provided u nder a separate declaration

. ” But no separat e declaration, and no motion to quash, ap p ears in the
tri al cou rt reco rd

. At the he aring on de fendant ’ s motion to vacate the default, on February 8, 2021

, the proposed mo tion to quash was nowhere

to be found. The hearing was held remote ly beca use of the6

pandemic protocols

, so counsel could not provide a copy at the hearing. (This court granted de fendant ’ s motion to augment th e record on appeal to include the motion to qu ash, to ge ther wi th documents sh owing defendant ’ s January 1, 2 021 e

- filing request
to attach the motion to the Abt declaration already on file , as well
as a Fe b ruary 8, 2021 request for courtesy co py d elivery an d February 9, 2021 confirmation of delivery to “ DEPT 12 Judge
M eiers. ” )
3

. Plaintiff

’ s Opposition Plaintiff ’ s o pposition

, filed December 18, 20 20
, included
declarati ons from his counsel

, N eil Thakor

, and from the process

server, Ms. I riz ar ry

. Ms. I ri za rr y d eclared that, o n June 12, 2019, she served
F r ances Hernandez with N ational Registered Agents, Inc. at its
address in D elaware, and immediatel y signed the pro of of service. She stated the proof of service was “ not in any way for ged or do ct ored ” ; the s ignat ure was hers; a nd she was willing to be depo s ed and testify to thos e facts.
Mr. Thakor described the ch ronology of events and appended m uch of the same e

- mail c orrespo ndence with
Mr. Grbic as already recounted.
In the opposit ion , pla intif f contend ed, along with erron e ous l egal arguments bas ed on outdated precedent, that “ default was
entered as a res ult of the neglect of both Wanu ’ s counsel

, Wanu ’ s Chief Exec utive Officer and its Board. ” As evid ence, p laintiff poin t ed to the communica tions att a ched to Mr. Thak or ’ s de claration , showing that defendant ’ s c hief executive officer (CEO) was copie d on t he e

- mail in wh ich plaintiff ’s coun sel disclosed that a default had been entered against de fendant (Aug ust 8
, 2019 ) ; on e

- mails showing pla int i ff ’ s cou nsel sent Mr. G rbic and the CEO a copy o f the complaint on October 3,
2019 ; and on an e

- mail in w hich plaint iff ’ s counsel stated t hat “ I7

do n ’ t think we will be wait ing for you to ret ain cou nsel much longer ” (October 3, 2019)

. Most o f the settleme nt communicati ons do not show defenda nt ’ s CE O as receiving a cop y, including one f r om
p laintiff ’ s coun sel in November 2019 saying pla intiff would

“ proceed wit h the default judgment ” if defendant refused it s demand to inspect fin ancial records

. Plaintiff a lso c ited an e

- mail from Mr. Gr bic to plaintiff ’ s c ounsel ( January 2 7, 20 2 0 ) , stating
th at “ the board appears to be very interested in litigatio n to obtain the dat a needed for the other cases ag ainst [other persons]

. ” That e

- mail (which also states “ we wi ll get back to you wit h a response ” to pla intiff ’ s counter offer) is the last e

- mail in
the record about settl e ment

. From the evidence just described, plaintiff contended that defendant “ m ade the deliberate decision to not re spond to the Complaint and seek relief from d ef aul t, ” and “ cannot now forc e its attorney t o fall on his swo rd

, to cover up for its own mist a kes. ”
4

. Defen dant ’ s Reply Defendant argued th ere was no evidence that any cond uct on its part in any way contributed to the entry of def ault on Aug ust 2, 201 9
, whi ch it says is the c ritica l period for determining the via bility of an attorney ’s affidavit of fa ult. Moreover, defenda nt contended that

, even assuming defendant

w as in any way r esponsible, prece dents state that mandatory relief doe s not r equire the a ttorn ey to be solely re s ponsib l e, citing
Be nedict v. Danner Pr ess (2001) 87 Cal.App.4th 923, 928



### – 92 9 ( Benedict ) ( observing that “ [o] n its face, section 473,
subdivision (b), does not preclude relief under the mandatory provision when def

ault is entered as a res ult of a combinati on of

a t torney and c lient fau lt. The s tatute merely requires that the

att or ney ’ s conduct be a cause in fact of the entry of default (see8

§ 473, subd. (b)), but does not indicate that it must be
the only ca use ” )

. Defen dant also cont inue d to argue that the judg m ent was void b ecause of a false proof of service.
5. Ad ditional Briefing On January 4, 2021, at a hearing on the motio n to vacate the defau lt judgment

, the court stayed all collection efforts and enjoined pla inti ff fro m disbur sing any fun ds already collec te d

, and “set[] a hearin g as to service. ” O n February 2, 2021, two days before the then

- scheduled hearing date

, plaintiff filed a supplement al brief in opposition to defendant ’ s motion to vacate the judgme nt

. In addition to o ther points unneces sary to recite here , p laintiff argu ed for the first
time that defendant ’ s application di d not include an answer or other pleading proposed t o be filed, as required by the statute

, and therefore it must be denied

. Defendan t re sponded wi th a declaration from counsel

pr otestin g the “ 11 th

- hour service ” and, among other points,

stat ing th at its motion t o vacate the default was a ccompanied by
a motion t o quash as its “ other pleading proposed to be f iled, ” as provided i n the s tat ute.
6

. The H earing The court held the hearing on February 8, 2021. T he

p arties argued about the proposed motion to q uash, whether it qualified as a responsive plead i ng, and whethe r it had been fi led,
since th ere was no copy in the c ourt ’s file

. The he aring was

remo te b eca use of the pande mic

, so counsel could not provide a copy at the hearing. The pa r ties also argued about t he validity of
servi ce of the summons and com plaint, an d particular ly th e discrepanc y in Ms. Irizarry ’s sign at ur e on the proof of service

compar ed w ith other proofs of service

. The trial court took the
matter under sub mi ssion

.9 O n February 22, 2 021, the court issued i t s ruling denyi ng defendant ’ s mot ion to set aside the defa ult and vac ate the default judgm ent , and served the minute o rder on the pa rties

. The court did n ot state a reason for its decisio n. Almo st six months later , o n August 13, 2021, d e fendant
served notice of en try of the court ’ s order

, and f iled a notice of

appe al on August 17, 2021.
D u ring the br iefing of this appea l, plaint iff r equest ed judicial notic e of fou r docum ents

. 1 None of th e documents was judicial l y noticed by the trial court , and n o n e of them ha s an y relevance to eithe r of the two issues w e decide in this cas e

. We therefor e den y th e r equest. D I SC USSI ON S ection 473 (b) provides in pertinent p art:

“ N otwiths tanding any other re quirements of this sec t ion, the court shall, whenever an app lication for rel ief is made no more than six months after entry of judgment, is in proper fo r m, and is

a ccompanied by an att orney’s sworn affidavit attesting to his or
h er mist ake, inadvertence, s urprise, or neglect, v a cate any (1) resulting default entere d by the clerk a gainst his or her cl ient, and which will result in entry of a default judgme n t, or (2) r esulting default jud gment or dismi ssal entered against hi s or her client , unless the court f inds that the default o r dismissal was not in fact caused by the attorney’s mistake, in advertenc e, surprise, or negle ct. ”

1 The documents are: a motion to set aside a defaul t tha t defendant fil ed i n a different case in September 2020 ; an a ff idavit supporting that m otion; a n otice of confirmat ion of an electro nic filin g in this case dated August 1, 20 19 ; and an e

- mail from plaint iff ’s counsel to his as sistant on August 2, 20 19
, asking her
to refile a nd re

- serve th e request for entry of default.10 “ Unlike the discretionary grou n d for relie f, a motion based

on attorney faul t need not show diligen ce in se eking r elief. The
motion is timely if filed with i n six months of the entry of the defa ult judgment or dismissal

. ” ( Younes si v. Woolf (2016)
24 4 Cal. App.4th 1137, 1147 ; Milton v. Perceptual Development Corp. (1 997) 53 Cal.Ap p.4th 861, 868 .)

“ The purpose of [the ] mandatory relief provision is to
allevia t e the hardship on parties who lose th eir day in court due to an inexcusab le failure to act by their attorneys. [Citation.]
More recently, t he Court of Appeal h as stated the purpose was to relieve the inno cent cl ient of the burden of the attorney ’ s fault

, to impose the burden on the erring a ttorney, and to avoid precipitating more litigation in th e form of malpractice suits. ” ( Rod r iguez v. Br ill (2015) 234 Cal.A pp.4th 715, 72 3 ( Rodriguez ) .)
He re, p laintiff conten ds two groun ds sup p ort the trial

court ’ s denial of the application for mandatory relief. We dis agree, and address p laintiff ’ s arguments in turn.
1

. “ In Proper Form ”
Plain t iff asserts the application for relief was no t “ i n proper form ” beca use it “ did not contain a prop o sed answer or any other responsive pleading

, ” and because defendant did not provide a

p roposed answer before the February 8, 2021 hearing.

a
. The legal principles
W e apply the followin g principles. First, t here is precede nt stating the Legislature “ intended the phrase ‘ “ in proper form ” ’ to encompass the mandate that the

ap plication for relief

. . . be accompani ed by the pleading proposed

to be filed therein. ” ( Her nandez v. FCA US LLC (2020 )
50 Cal .App.5 th 329, 336



### – 337 ( He rnandez ) , citing Carmel, Ltd. v.
Tavoussi (2009) 175 Cal.App.4th 393, 4 01 ( Carmel ).) Second, s ubstantial complianc e with th at requi rem ent is suffi cient. ( Carmel, supra, 1 75 Cal.App.4 th at p. 403 .)11 T hird, the stat ut ory language plainti ff relies on requ ires
submission o f “ the answer or other pleading proposed to be filed ”

– language that on its fa ce does not exclude a motion to quash as

a pro per res ponse to a complaint. b

. This cas e The substance of plaintiff ’ s argu ment i s that a motion to quash is not “ a responsive ple a ding ” because it does not demonstrate readiness to pro ceed on the merits

. P l aintiff relies
on la n guage in cas es where the defendan t in defa u lt proposed to file an a nswer together with the motion for relief from de fault

. T h e issue in those cases was whether the filing of a proposed

answer subs tantially complied wit h t he s tatute if the an swer was not attached to t he applic ation and was instead filed later. F or

exa m pl e, in Carmel, the defend ants execut ed a prop osed answer, bu t the record did not show they included it with their application for r e lief. But the defendant s “made i t available at the hearing on the mot ion

, ” and this “substantially c omplied with
the requ i re ments of the mandatory relief provi sion of [ secti on 473 (b )]

. ” ( Carmel , supra, 175 Cal.App.4 th at p. 403.)
In Carmel , the co urt stated that “we inter pret the phras e

‘ in the proper form ’ to includ e t he requirement that a propo s ed

answer accompany t h e application for mandatory relief. ” ( Car mel, supra, 17 5 Ca l .App.4 th at p. 402.) Similarly, Job v. Farrington (198 9) 209 Cal.App.3 d 3 3 8
, re lied on in Carme l

, state d that the o bject of the “proposed ans wer or other pleading ” require m ent “was simply to re q ui re the delinquent party seeking
leave to contest on th e mer its , to show his good faith and rea diness

to at onc e file his answer in the even t that leave is granted

. ” ( Job, at pp. 340, 341 , italics adde d .) Both cases involved a

pro p osed answer, not any o th er kind of pleading, and the ir language is accordingly couc hed in terms of a proposed answer, rather than any other kind of pleadi ng. N either case holds t hat a12

responsiv e ple ading must address the mer its of th e case, and
neither c o urt discusses what “ o n t he merits ” means. In short,
neither cou rt considered wheth er a motion to quash service of process constitutes an “ other pleading proposed to be filed ”
wit hin the meaning of s ection 473(b)

. Plaintiff c ite s the policies supporting t h e req uirement that

a p ro posed pleading accompany the application for relief , a s des cribed in Carmel : “ ‘ “policies [which] favor getting cases to
trial o n time, avoiding unnecess ary and prejudi cial de lay, and preventing liti gan ts from playing fast and lo o se with the pertinent le gal rules and procedures. ” ’ ” ( Carmel, supra, 175 Ca l.App .4 th at pp. 401



### – 402.) While a motion to q uash
service would involve a delay in reaching the mer its , p laintiff
does not explain why i t would create “ ‘ “ unnecessary an d

pre j udicial delay

, ” ’ ” or h ow it would constit u te “ ‘ “ playing fast
and loose wit h the pertinent legal rules and procedures. ’ ” ’ ( I bid. ) Plaintiff further cl aims a motion to quash is not a pleading

at all because it i s not li sted in Code of Civil Proc edure section 422.10 ( “The ple adings allowed in c i vil actions are

comp laints, demurr ers, answers, and cross

- complaints ” ) and because section 420 defines “plea dings ” as “the formal alleg ations by the pa r tie s of their respe ctive cl aims and defenses, for the judgm e nt of the court. ” We do not construe the m eaning of the

term “ p leading ” in se ction 473(b) so narrowly

. In a different context

, Goddard v. Po llock (19 74)
37 Cal.App.3d 137 state s that a motion to q uash service of

summons “ clearly constitutes a ‘ pl eading ’ which, if timely filed, would have preclu d ed the clerk from the reafter enteri ng de fendants ’ default

. ” ( Id. at p. 141, citing Code Civ

. Proc ., § 585 [ g overning when j udgment may be had if a defendant fails to

answ er or file other specified motions , i ncludi n g a motion to13

quash ]

. ) Further

, in many c a ses involving dismi ssals (as oppo sed

to default judgments) under the mandatory provision , the “ other pleading proposed to be filed ” is a motion , or s ome oth er document that is not a “ p leading ” as defined in secti o n 4 22.10. ( See, e .g., Hern andez, supra, 50 Cal

. App.5 th at p. 337 [motion f o r attorney f

ees , after a settlement and dismissal]; see also Rodriguez , supra, 23 4 Cal.App.4th at pp. 719



### – 72 0 [verified
discover y responses , after dismi ssal impl emen ting a termin ating

s anction for discov ery abuse].) Consequent l y, the term “ p leading ”
is n o t limited as plaintiff suggests. Next, p laintiff c ontends that even if a motion t o quash qualifies as an “ ot her pleading, ” in th is case the p roposed mot io n to quash “ was never submitte d

. ” Plaintiff corr ect ly states that at

t he February 8, 20 21 hearing, t h e trial court did not have a copy of the proposed motion to quash

. But the record r eflect s delivery of a courtesy copy to the t rial court the following day

, as plaintiff
admits. The record also reflects def endant ’ s earlier, apparently

unsuc cessful, effo r ts to fil e the propos ed motion to quash, beginni ng on January 1, 2 02 1. We conclude tha t defendan t substantially complied with
the requirement that a pr oposed pleading accompany a m otio n to vacate a de fault. We are aware that in other cases finding
subst a nt ial compliance, the “ answer or other pl eading ” ha d been lodge d with the court by the day of the hearing. ( Carmel, supra, 175 Cal.A pp.4 th at p. 403 [ “ We do not know whether defend ants ’
counsel inadve rtently failed to accompany the motion wi th their

prop o se d answer , or whethe r the proposed answe r simply d i d not find its way i nto the court ’ s file. Bu t we perceive no reason why
the court could not have re viewed the proposed answer pr offered
at the heari ng and ordered it filed

. ”]; see also Rodr iguez, s upra, 23 4 Cal.App.4 th at p. 733 [substantial co mpliance w h ere “ verifi ed14

discovery responses were served the day before the hearing and copies were lo dged with the court the day of the hea ring ” ] .)
The circums tances here are different. The record sh ows

coun sel t r ie d to file the motio n to quash before th e hearing

. Moreover, the hearing was conducted remotely

, while pandemic prot ocols were in place, so counsel wa s not in a position t o
presen t a copy of the moti on to quash to the trial court at the hea ring. Furthe r , the co urt did not decide the motion to vacate the defau l t until Feb ruary 22, 2021, well after d eliver y to the

court of a copy of the motion to quash on Febr uary 9, 2021. Plaintiff iden tifies no prejudice s uffered from delivery to the court one day afte r , rather than at, the heari ng. The substantial complianc e standard w as met.
2

. The Caus ation Issue
Bec a use defendant ’ s motion to vacate the default judgment

wa s timely and in proper form

, the trial court wa s required to vacate the default ju dgment “ unles s the cou rt finds that the
d efault

. . . was not in fact cause d by the att orney ’ s mistake, inadvertence, surp rise , or neglect. ” (§ 473(b).)

a. The l aw Ther e is a split of authority on wh ether the attorney must be the sole cause of the defaul t in order to rely on the mandatory
relie f provision . Some c ase s say mandatory relief is available only if the pa rty aga inst whom the judgment is taken is “totally
innoc e n t of any wrongdoing and the a ttorney was the sole cause of the default or dismissal. ” ( Lang v. H o chma n (2000)
77 Cal.App.4 th 1225, 1248; id. at p

. 1252 [ “ When deciding
wh ether to grant relief, the cou r t m ust resolve the issue whether attorney actions, o r the misconduct of the parties themselves, actually caused the default or dismissal. ” ].) Other c a ses say that mandatory reli ef is available unle ss the party is guilty of intentional misconduct. ( See, e .g. ,15

SJ P Limited Partnership v. City of Los Angeles (200 6 )
136 Cal.App.4th 511, 520 [ “ B ecause [the attorney ’ s] declaration
indicates that his mistake o r neglect caused [the plaintiff ’ s] dismissa l and bec aus e the evidence does not support a finding of
intentio n al misconduct on [the plaintiff ’ s] part, we find tha t the
trial court erred in not granting [the plaintiff] mandatory relief from dis missal. ” ]; B en edict , su pra, 87 Cal.App.4th at pp. 93 0 , 9 32 [ “ if th e Lang court meant to hold that relief is precluded when a d efault is caused in part by a mistake or erro r of judgment by the
client and in part by attorney ove rsight or neglect, we simply
d isagree ” ; “ I na smuch as [ the defendants ’ ] couns el submitted
d eclara tions indicating ways in w hich counsel ’ s mistake or negl e ct caused the entry of default, the trial court prop e rly granted the requested [man datory] relief, even though [a defendant ’ s] mistak es were an a dd itional c ause in f act of the

ent ry of default. ” ]. )
W e need not enter the fray on this point, because there i s

no substantial e vidence to support plaintiff ’ s contention that defendant cause d th e entry of default. b

. This case We have described the record in d etail in the Facts sec tion

, in cluding the evide nce plaintiff relies on for his claim that the attorney, Mr

. Grbic, was not s olely at fault ( ante, at pp . 6



### – 7). At best, the record shows def e ndant ’ s executiv e s may have had a
limited awarenes s of the lawsu i t. That i s not enou gh to show defe ndant caused the default to be entered

. Plaintiff insists the record sho w s Mr. Grbic was “simply covering up fo r his client

. ” But the only evidence plaintiff cites
are a few e

- mails after the default was e n tered, s howing a copy to def en d ant’s CEO . As al ready described, these were e

- mails disclosing that a de f

ault h ad been entered ; showing transmission16

of a copy of the complaint

, including a statement by plaintiff’s
counsel t hat “I don’t th ink we will be wai ting for you t o retain

couns el m uch longer

, ” and a statement by Mr. Grbic that “[i]f we have to litigate

, we’re prepared to bring a full set of

cou nterclaims

. ” Pla intiff also cites e

- mail s ( not showing a copy to the CEO) from Mr

. Grbic to coun sel for plai ntiff s ayi ng “ we’re
al s o min dful of time to file and not going to p ut up with foot

dragging” on a settle m ent off er , and “ the board appear s to be very interested in litigation to obtain the data needed for the othe r cases again st [othe r persons]. ”
In sum , t here is no ev idence defenda nt caused the entry of
default , which occurred o n August 2, 2019 , before any of the e

mail correspondence pla intiff cites. Nor can we reaso na bly i nfer

, from th at cor respondence

, that ( as plaintiff ar gues ), defendan t “m ade the d eliberat e deci sion to not re spond to the Complaint to try to settle at a disc ount in s tead of seeking relief from defau lt.”
P laintiff co n tends the question whether the attorney

caus ed the default “is in part a credibility determin a tio n , ” citing
Cowan v . Kr ayzman (2011) 19 6 Cal.App.4th 907, 915 . But in that

case the trial cour t actually made a credibil ity determination

, and there was eviden ce to support it. ( Ibid. ) Here , the court did not explain its reasoning and did not make any cr e di bility
findin g, and we find no re as on to discredit Mr. Grbic ’ s declaration

. On a final note

, we do not describe in deta i l or consider the parties ’ contentio ns rega rding the re liability of the proof of
service of the summons and complaint . That will be a matter for
the t rial court to deci de on remand. It is sufficient to sa y the dispute does no t appear to be manufactured f or purpo ses of delay
because in Nove mber 2020, outside defen se counsel expressed his17

belief that the proof of service was false and, w hether or not

cou nsel was correct, he apparently had legitimate reasons to think so

. D ISPOSIT I ON
The order deny ing defend a nt ’ s motion for relief under
section 473(b) is reversed . The cause is remanded to the trial
court with directions to vacate its orde r and to enter a n ew o rder granting th e motion for relief ; v acating the entry of default and

vacat ing th e default judgment ; recalling and quashing the writ of execution, vacating th e levy, and ordering return of the $63,739.79 to defendant. D efendant shall recover its c o sts on appeal

.

GRI MES

, J

. W E C ONCUR:

S TRATTON, P. J.

V IRAMONTES, J.