SOLV-ALL

This is an unremarkable action brought by real party SMS Supermarket Service, Inc. (SMS) against petitioner Solv-All and certain individuals for breach of contract and common counts. After petitioners failed to file timely responses to the complaint, SMS filed a request to enter their default, and default was duly entered on August 26, 2004.

Petitioners then filed a motion for relief, relying on subdivision (b) of the Code of Civil Procedure section 473, and arguing both “excusable neglect” and the “attorney fault” provision. In support of the motion, Attorney Mark Mellor provided a declaration in which he stated, in pertinent part, “During the time from filing and serving the Complaint and until the date, Plaintiff, SMS SUPERMARKET SERVICE, INC., filed the Request to Enter Default [.sic]. Serious negotiations were being held to resolve this Action between both clients and counsel, [¶] Counsel for Plaintiff . . . Demitra H. Tolbert, Esq., gave various extensions of time to answer ... to the undersigned. . . . Ms. Tolbert granted our office an extention [,s'zc] of time to respond to the Plaintiff’s Complaint until July 22, 2004. [][] During this period of time and the…