ALEJO MENDEZ VS ROSALINDA DONATO

Tentative Rulings

Case Number: 19STLC11478    Hearing Date: November 10, 2020    Dept: 25

HEARING DATE: Tue., November 10, 2020 JUDGE /DEPT: Blancarte/25

CASE NAME: Mendez v. Donato COMPL. FILED: 12-17-19

CASE NUMBER: 19STLC11478 DEFAULT: 02-07-20

PROCEEDINGS: MOTION FOR RELIEF FROM DEFAULT

MOVING PARTY: Defendant Rosalinda Donato

RESP. PARTY: Plaintiff Alejo Mendez

MOTION TO SET ASIDE DEFAULT AND DEFAULT JUDGMENT

(CCP § 473(b))

TENTATIVE RULING:

Defendant Rosalinda Donato’s Motion for Relief from Default and Default Judgment is GRANTED. Proposed answer to be filed within ten (10) days of this order.

SERVICE:

[X] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[X] Correct Address (CCP §§ 1013, 1013a) OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

OPPOSITION: Filed on March 17, 2020 [ ] Late [ ] None

REPLY: Filed on June 24, 2020 [X] Late [ ] None

ANALYSIS:

1. Background

On December 17, 2019, Plaintiff Alejo Mendez (“Plaintiff”) filed an action for violation of the Unruh Civil Rights Act against Defendant Rosalinda Donato (“Defendant”).

On February 7, 2020, default was entered against Defendant and on March 5, 2020, default judgment was entered in the amount of $5,125.00 (the “Judgment”), which consists of $4,000.00 in damages, $800.00 in attorney’s fees, and $325.00 in costs. (3/5/20 Judgment.) Defendant retained counsel on February 21, 2020, after default was entered but before the default judgment. (Mot., Green Decl., ¶¶ 3-4.)

On March 12, 2020, Defendant filed the instant Motion for Relief from Default (the “Motion”). On March 17, 2020, Plaintiff filed an Opposition. A late reply brief was filed by Defendant on June 24, 2020, one day before the hearing, and for this reason, was not considered by the Court in its initial ruling.

At the initial hearing on June 29, 2020, the Court requested supplemental papers from Defendant demonstrating the default resulted from her own mistake, excusable neglect, surprise or inadvertence. (6/25/20 Minute Order.) On July 10, 2020, Defendant filed a declaration from Rocio L. Pulido.

At the continued September 10, 2020 hearing, the Court noted that Rocio Pulido, Defendant’s daughter who is not a party to this action, could not attest to Defendant’s mistake, excusable neglect, surprise, or inadvertence. (9/10/20 Minute Order.) Defendant was ordered to file and serve her own declaration in support of this Motion. (Id.)

Defendant filed a declaration on September 15, 2020. No further filings in opposition to this Motion have been filed by Plaintiff.

1. Legal Standard & Discussion

“Section 473(b) provides for both discretionary and mandatory relief. [Citation.]” (Pagnini v. Union Bank, N.A. (2018) 28 Cal.App.5th 298, 302.) An application for relief under this section must be made no more than six months after entry of the judgment, dismissal, order or other proceeding from which relief is sought and must be accompanied by an affidavit of fault attesting to the mistake, inadvertence, surprise or neglect of the moving party or its attorney. (Code Civ. Proc., § 473, subd. (b); English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 143.) In addition, an application for relief under this section “shall be accompanied by a copy of the answer or other pleading proposed to be filed herein, otherwise the application shall not be granted.” (Code Civ. Proc., § 473, subd. (b).)

In her supplemental papers, Defendant states that her daughter was served with the initial complaint on January 4, 2020. (9/15/20 Donato Decl., ¶ 3.) After being served, she and her daughter began researching what to do next but were not aware of the 30-day deadline to respond. (Id. at ¶ 4.) She states, however, that on January 27, 2020, she was served a second time with the Summons and Complaint by a Los Angeles Sheriff’s deputy. (Id. at ¶ 5.) Her daughter, Rocio Pulido, provides her declaration stating the same. (7/10/20 Pulido Decl., ¶ 5.) Both Defendant and her daughter state that they informed the Sheriff’s deputy they had previously been served, but that the deputy told them the second service was the one that “counted.” (9/15/20 Donato Decl., ¶ 7; 7/10/20 Pulido Decl., ¶ 7.) Based on this, Defendant believed she had more time to respond to the Complaint. (9/15/20 Donato Decl., ¶ 8; 7/10/20 Pulido Decl., ¶ 8.) Notably, Plaintiff has not filed any papers disputing Defendant’s statement she was served twice. After being served a second time, Defendant states she hired a company to help her address the issues raised in the Complaint. (9/15/20 Donato Decl., ¶ 7.) That company subsequently referred her to her current attorney. (Id.) However, by the time her attorney was retained, default had already been entered. (Id. at ¶ 10.)

Defendant’s counsel, Noah Green, also provides a declaration stating that after being retained on February 21, 2020, he immediately attempted to contact Plaintiff’s counsel in an effort to settle the case. (Mot., Green Decl., ¶¶ 3-5.) Defendant’s counsel states that he and Plaintiff’s counsel had previously worked together and settled several cases, so he mistakenly believed “there was a certain level of trust and good faith between [them].” (Id. at ¶ 7.) However, Plaintiff’s counsel did not return his phone calls and instead filed for default judgment on March 5, 2020. (Id. at ¶¶ 8-9.)

As Defendant’s request for relief from default and default judgment is timely and supported by her own declaration of fault as well as her attorney’s declaration of fault, the Motion is GRANTED.

1. Conclusion & Order

For the foregoing reasons, Defendant Rosalinda Donato’s Motion for Relief from Default and Default Judgment is GRANTED. Proposed answer to be filed within ten (10) days of this order.

Moving party is ordered to give notice.

Case Number: 19STLC11478    Hearing Date: September 10, 2020    Dept: 25

HEARING DATE:   Thu., September 10, 2020 JUDGE /DEPT: Blancarte/25

CASE NAME:  Mendez v. Donato COMPL. FILED: 12-17-19

CASE NUMBER: 19STLC11478 DEFAULT: 02-07-20

PROCEEDINGS:     MOTION FOR RELIEF FROM DEFAULT

MOVING PARTY:   Defendant Rosalinda Donato

RESP. PARTY: Plaintiff Alejo Mendez

 MOTION TO SET ASIDE DEFAULT AND DEFAULT JUDGMENT

(CCP § 473(b))

TENTATIVE RULING:

Defendant Rosalinda Donato’s Motion for Relief from Default is CONTINUED TO NOV 3, 2020 at 11:00 a.m. in Department 25 at the SPRING STREET COURTHOUSE. At least 16 court days before the next scheduled hearing, Defendant must file and serve supplemental papers addressing the deficiencies identified herein. Failure to do so may result in the Motion being placed off calendar or denied.

SERVICE: 

[X] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[X] Correct Address (CCP §§ 1013, 1013a) OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

OPPOSITION: Filed on March 17, 2020 [   ] Late [   ] None

REPLY: Filed on June 24, 2020 [X] Late [   ] None

ANALYSIS:

1. Background

On December 17, 2019, Plaintiff Alejo Mendez (“Plaintiff”) filed an action for violation of the Unruh Civil Rights Act against Defendant Rosalinda Donato (“Defendant”).

On February 7, 2020, default was entered against Defendant and on March 5, 2020, default judgment was entered in the amount of $5,125.00 (the “Judgment”), which consists of $4,000.00 in damages, $800.00 in attorney’s fees, and $325.00 in costs. (3/5/20 Judgment.) Notably, Defendant retained counsel on February 21, 2020, after default was entered but before the default judgment. (Mot., Green Decl., ¶¶ 3-4.)

On March 12, 2020, Defendant filed the instant Motion for Relief from Default (the “Motion”). On March 17, 2020, Plaintiff filed an Opposition. A late reply brief was filed by Defendant on June 24, 2020, one day before the hearing, and for this reason, was not considered by the Court in its initial ruling.

At the initial hearing on June 25, 2020, the Court requested supplemental papers from Defendant demonstrating the default resulted from her own mistake, excusable neglect, surprise or inadvertence. (6/25/20 Minute Order.) On July 10, 2020, Defendant filed a declaration from Rocio L. Pulido.

1. Legal Standard & Discussion

“Section 473(b) provides for both discretionary and mandatory relief.  [Citation.]”  (Pagnini v. Union Bank, N.A.(2018) 28 Cal.App.5th 298, 302.)  An application for relief under this section must be made no more than six months after entry of the judgment, dismissal, order or other proceeding from which relief is sought and must be accompanied by an affidavit of fault attesting to the mistake, inadvertence, surprise or neglect of the moving party or its attorney. (Code Civ. Proc., § 473, subd. (b); English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 143.) In addition, an application for relief under this section “shall be accompanied by a copy of the answer or other pleading proposed to be filed herein, otherwise the application shall not be granted.” (Code Civ. Proc., § 473, subd. (b).)

Defendant seeks to set aside the default and default judgment entered against her. (Mot., p. 2:1-2; p. 3:11-12.) As noted in the Court’s June 25, 2020 Order, Defendant’s counsel states he and Plaintiff’s counsel had previously worked on and settled several cases, so he attempted to settle this action as well. (Id., Green Decl., ¶ 5.) Due to their history, Defendant’s counsel mistakenly assumed “there was a certain level of trust and good faith between [them].” (Mot., p. 5:12-19, Green Decl., ¶ 7.) However, Plaintiff’s counsel did not return Defendant’s counsel’s phone calls and instead filed for default judgment on March 5, 2020. (Id. at ¶¶ 8-9.)

At the initial hearing, the Court noted that Defendant’s counsel’s affidavit of fault supported setting aside the default judgment but did not support setting aside the default entered against Defendant because counsel was retained after default was entered. (6/25/20 Minute Order.) Where a default is not the attorney’s fault, an attorney’s affidavit of fault relating to a subsequent default judgment does not compel relief. (Cisneros v. Vueve (1995) 37 Cal.App.4th 906, 910-11 [noting that “[t]here is no policy favoring ‘neglectful clients who allow their default to be entered simply because that neglect is compounded by attorney neglect in permitting the judgment to be perfected’”].) Thus, the Court ordered Defendant to provide supplemental papers demonstrating the default was entered due to her own mistake, excusable neglect, surprise, or inadvertence. (6/25/20 Minute Order.)

Defendant provides the declaration of Rocio L. Pulido (“Ms. Pulido”) in support of her Motion. Ms. Pulido is Defendant’s daughter. (7/10/20 Pulido Decl., ¶ 2.) Ms. Pulido states that she was served with the Summons and Complaint while working at her mother’s business twice, once on January 4, 2020 by an individual and again on January 27, 2020 by a Sheriff’s deputy. (Id. at ¶¶ 3-5.) Based on the latter service, she states that she and her mother believed they had more time to respond. (Id. at ¶ 8.) However, Defendant still has not provided her own declaration and it is unclear why she did not do so. A third-person not a party to this action cannot attest to Defendant’s mistake, excusable neglect, surprise, or inadvertence. Thus, Defendant is ordered to provide her own declaration attesting to her mistake, excusable neglect, surprise, or inadvertence.

1. Conclusion & Order

For the foregoing reasons, Defendant Rosalinda Donato’s Motion for Relief from Default is CONTINUED TO NOV 3, 2020 at 11:00 a.m. in Department 25 at the SPRING STREET COURTHOUSE. At least 16 court days before the next scheduled hearing, Defendant must file and serve supplemental papers addressing the deficiencies identified herein. Failure to do so may result in the Motion being placed off calendar or denied.

Moving party is ordered to give notice. 

Case Number: 19STLC11478    Hearing Date: September 09, 2020    Dept: 25

HEARING DATE: Thu., September 10, 2020 JUDGE /DEPT: Blancarte/25

CASE NAME: Mendez v. Donato COMPL. FILED: 12-17-19

CASE NUMBER: 19STLC11478 DEFAULT: 02-07-20

PROCEEDINGS: MOTION FOR RELIEF FROM DEFAULT

MOVING PARTY: Defendant Rosalinda Donato

RESP. PARTY: Plaintiff Alejo Mendez

MOTION TO SET ASIDE DEFAULT AND DEFAULT JUDGMENT

(CCP § 473(b))

TENTATIVE RULING:

Defendant Rosalinda Donato’s Motion for Relief from Default is CONTINUED TO NOV 3, 2020 at 11:00 a.m. in Department 25 at the SPRING STREET COURTHOUSE. At least 16 court days before the next scheduled hearing, Defendant must file and serve supplemental papers addressing the deficiencies identified herein. Failure to do so may result in the Motion being placed off calendar or denied.

SERVICE:

[X] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[X] Correct Address (CCP §§ 1013, 1013a) OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

OPPOSITION: Filed on March 17, 2020 [ ] Late [ ] None

REPLY: Filed on June 24, 2020 [X] Late [ ] None

ANALYSIS:

1. Background

On December 17, 2019, Plaintiff Alejo Mendez (“Plaintiff”) filed an action for violation of the Unruh Civil Rights Act against Defendant Rosalinda Donato (“Defendant”).

On February 7, 2020, default was entered against Defendant and on March 5, 2020, default judgment was entered in the amount of $5,125.00 (the “Judgment”), which consists of $4,000.00 in damages, $800.00 in attorney’s fees, and $325.00 in costs. (3/5/20 Judgment.) Notably, Defendant retained counsel on February 21, 2020, after default was entered but before the default judgment. (Mot., Green Decl., ¶¶ 3-4.)

On March 12, 2020, Defendant filed the instant Motion for Relief from Default (the “Motion”). On March 17, 2020, Plaintiff filed an Opposition. A late reply brief was filed by Defendant on June 24, 2020, one day before the hearing, and for this reason, was not considered by the Court in its initial ruling.

At the initial hearing on June 25, 2020, the Court requested supplemental papers from Defendant demonstrating the default resulted from her own mistake, excusable neglect, surprise or inadvertence. (6/25/20 Minute Order.) On July 10, 2020, Defendant filed a declaration from Rocio L. Pulido.

1. Legal Standard & Discussion

“Section 473(b) provides for both discretionary and mandatory relief. [Citation.]” (Pagnini v. Union Bank, N.A. (2018) 28 Cal.App.5th 298, 302.) An application for relief under this section must be made no more than six months after entry of the judgment, dismissal, order or other proceeding from which relief is sought and must be accompanied by an affidavit of fault attesting to the mistake, inadvertence, surprise or neglect of the moving party or its attorney. (Code Civ. Proc., § 473, subd. (b); English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 143.) In addition, an application for relief under this section “shall be accompanied by a copy of the answer or other pleading proposed to be filed herein, otherwise the application shall not be granted.” (Code Civ. Proc., § 473, subd. (b).)

Defendant seeks to set aside the default and default judgment entered against her. (Mot., p. 2:1-2; p. 3:11-12.) As noted in the Court’s June 25, 2020 Order, Defendant’s counsel states he and Plaintiff’s counsel had previously worked on and settled several cases, so he attempted to settle this action as well. (Id., Green Decl., ¶ 5.) Due to their history, Defendant’s counsel mistakenly assumed “there was a certain level of trust and good faith between [them].” (Mot., p. 5:12-19, Green Decl., ¶ 7.) However, Plaintiff’s counsel did not return Defendant’s counsel’s phone calls and instead filed for default judgment on March 5, 2020. (Id. at ¶¶ 8-9.)

At the initial hearing, the Court noted that Defendant’s counsel’s affidavit of fault supported setting aside the default judgment but did not support setting aside the default entered against Defendant because counsel was retained after default was entered. (6/25/20 Minute Order.) Where a default is not the attorney’s fault, an attorney’s affidavit of fault relating to a subsequent default judgment does not compel relief. (Cisneros v. Vueve (1995) 37 Cal.App.4th 906, 910-11 [noting that “[t]here is no policy favoring ‘neglectful clients who allow their default to be entered simply because that neglect is compounded by attorney neglect in permitting the judgment to be perfected’”].) Thus, the Court ordered Defendant to provide supplemental papers demonstrating the default was entered due to her own mistake, excusable neglect, surprise, or inadvertence. (6/25/20 Minute Order.)

Defendant provides the declaration of Rocio L. Pulido (“Ms. Pulido”) in support of her Motion. Ms. Pulido is Defendant’s daughter. (7/10/20 Pulido Decl., ¶ 2.) Ms. Pulido states that she was served with the Summons and Complaint while working at her mother’s business twice, once on January 4, 2020 by an individual and again on January 27, 2020 by a Sheriff’s deputy. (Id. at ¶¶ 3-5.) Based on the latter service, she states that she and her mother believed they had more time to respond. (Id. at ¶ 8.) However, Defendant still has not provided her own declaration and it is unclear why she did not do so. A third-person not a party to this action cannot attest to Defendant’s mistake, excusable neglect, surprise, or inadvertence. Thus, Defendant is ordered to provide her own declaration attesting to her mistake, excusable neglect, surprise, or inadvertence.

1. Conclusion & Order

For the foregoing reasons, Defendant Rosalinda Donato’s Motion for Relief from Default is CONTINUED TO NOV 3, 2020 at 11:00 a.m. in Department 25 at the SPRING STREET COURTHOUSE. At least 16 court days before the next scheduled hearing, Defendant must file and serve supplemental papers addressing the deficiencies identified herein. Failure to do so may result in the Motion being placed off calendar or denied.

Moving party is ordered to give notice.

Case Number: 19STLC11478    Hearing Date: June 29, 2020    Dept: 25

MOTION TO SET ASIDE DEFAULT AND DEFAULT JUDGMENT

(CCP § 473(b))

TENTATIVE RULING:

Defendant Rosalinda Donato’s Motion for Relief from Default is CONTINUED TO SEPTEMBER 10, 2020 at 9:00 a.m. in Department 25 at the SPRING STREET COURTHOUSE. At least 16 court days before the next scheduled hearing, Defendant must file and serve supplemental papers addressing the deficiencies identified herein. Failure to do so may result in the Motion being placed off calendar or denied.

SERVICE:

[X] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[X] Correct Address (CCP §§ 1013, 1013a) OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

OPPOSITION: Filed on March 17, 2020 [ ] Late [ ] None

REPLY: None filed as of June 23, 2020 [ ] Late [X] None

ANALYSIS:

1. Background

On December 17, 2019, Plaintiff Alejo Mendez (“Plaintiff”) filed an action for violation of the Unruh Civil Rights Act against Defendant Rosalinda Donato (“Defendant”).

On February 7, 2020, default was entered against Defendant and on March 5, 2020, default judgment was entered in the amount of $5,125.00 (the “Judgment”), which consists of $4,000.00 in damages, $800.00 in attorney’s fees, and $325.00 in costs. (3/5/20 Judgment.) Notably, Defendant retained counsel on February 21, 2020, after default was entered but before the default judgment. (Mot., Green Decl., ¶¶ 3-4.)

On March 12, 2020, Defendant filed the instant Motion for Relief from Default (the “Motion”). On March 17, 2020, Plaintiff filed an Opposition. To date, no reply brief has been filed.

1. Legal Standard & Discussion

“Section 473(b) provides for both discretionary and mandatory relief. [Citation.]” (Pagnini v. Union Bank, N.A. (2018) 28 Cal.App.5th 298, 302.) An application for relief under this section must be made no more than six months after entry of the judgment, dismissal, order or other proceeding from which relief is sought and must be accompanied by an affidavit of fault attesting to the mistake, inadvertence, surprise or neglect of the moving party or its attorney. (Code Civ. Proc., § 473, subd. (b); English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 143.) In addition, an application for relief under this section “shall be accompanied by a copy of the answer or other pleading proposed to be filed herein, otherwise the application shall not be granted.” (Code Civ. Proc., § 473, subd. (b).)

Here, Defendant seeks to set aside the default and default judgment entered against her. (Mot., p. 2:1-2; p. 3:11-12.) Defendant’s counsel states he and Plaintiff’s counsel had previously worked on and settled several cases, so he attempted to settle this action as well. (Mot., Green Decl., ¶ 5.) Due to their history, Defendant’s counsel mistakenly assumed “there was a certain level of trust and good faith between [them].” (Mot., p. 5:12-19, Green Decl., ¶ 7.) However, Plaintiff’s counsel did not return his phone calls and instead filed for default judgment on March 5, 2020. (Id. at ¶¶ 8-9.)

In his Opposition, Plaintiff argues that Defendant is not entitled to relief under Section 473 because Defendant’s counsel was retained after default was entered, and thus, the attorney affidavit of fault “cannot and does not state that his mistake, inadvertence, surprise, or neglect caused the entry of such default.” (Oppo., p. 2: 3-7.) The Court agrees. While the attorney affidavit of fault supports relief from default judgment, it does not support Defendant’s request to set aside the default entered against her on February 7, 2020.

Defendant argues that the Court has discretion to set aside the default even without an attorney affidavit of fault. (Mot., p. 6:3-6.) Although Defendant is correct that the Court has the discretion to set aside a default or default judgment without an attorney affidavit of fault, Defendant bears the burden to establish the default was entered due to her mistake, excusable neglect, surprise, or inadvertence. Defendant has not done so here. Thus, Defendant is ordered to file and serve supplemental papers demonstrating she is entitled to relief Section 473, subdivision (b).

1. Conclusion & Order

For the foregoing reasons, Defendant Rosalinda Donato’s Motion for Relief from Default is CONTINUED TO SEPTEMBER 10, 2020 at 9:OO a.m. in Department 25 at the SPRING STREET COURTHOUSE. At least 16 court days before the next scheduled hearing, Defendant must file and serve supplemental papers addressing the deficiencies identified herein. Failure to do so may result in the Motion being placed off calendar or denied.

Moving party is ordered to give notice.