AMERICAN TIRE DISTRIBUTORS, INC. VS 1ST AMERICAN FINANCIAL INC, ET AL.

Tentative Rulings

Case Number: 19STLC11718    Hearing Date: April 8, 2021    Dept: 26

American Tire Distributors, Inc. v. 1st American Financial, Inc., et al.

MOTION TO DEEM REQUESTS FOR ADMISSION ADMITTED

(CCP § 2033.280)

TENTATIVE RULING:

Plaintiff American Tire Distributors, Inc.’s Motion to Deem Requests for Admission Admitted Against Defendant 1st American Financial, Inc. is GRANTED. DEFENDANT IS ORDERED TO PAY SANCTIONS OF $225.50 TO PLAINTIFF’S COUNSEL WITHIN 20 DAYS’ SERVICE OF THIS ORDER.

ANALYSIS:

Plaintiff American Tire Distributors, Inc. (“Plaintiff”) filed the instant action for breach of contract, common counts and breach of guaranty against Defendant 1st American Financial, Inc. (“Defendant”) on December 23, 2019. On September 20, 2020, Plaintiff served Requests for Admissions on Defendant. (Motion, Carter Decl., Exh. 1.) To date, Plaintiff has not received any verified responses to the discovery requests from Defendant. (Id. at ¶7.) Plaintiff filed the instant Motion to Deem Requests for Admission Admitted and Request for Sanctions on January 19, 2021. To date, no opposition has been filed.

Defendant has not served verified responses to the discovery propounded on September 20, 2020 as of the filing of the Motion. There is no requirement for a prior meet and confer effort before a motion to deem requests for admission can be filed. (Code Civ. Proc., § 2033.280.) Further, the motion can be brought any time after the responding party fails to provide the responses. (Code Civ. Proc., § 2033.280.) Therefore, Plaintiff is entitled to an order deeming the Requests for Admission admitted. (Code Civ. Proc., § 2033.280.) Sanctions are required under Code of Civil Procedure sections 2023.010, 2023.030 and 2033.280, and have been properly noticed. However, the amount sought is excessive under a lodestar calculation. Sanctions are granted against Defendant in the amount of $225.50, based on half-an-hour of attorney time billed at $350.00 per hour, plus the $60.00 filing fee. (Motion, Carter Decl., ¶12.)

Based on the foregoing, Plaintiff American Tire Distributors, Inc.’s Motion to Deem Requests for Admission Admitted Against Defendant 1st American Financial, Inc. is GRANTED. DEFENDANT IS ORDERED TO PAY SANCTIONS OF $225.50 TO PLAINTIFF’S COUNSEL WITHIN 20 DAYS’ SERVICE OF THIS ORDER.

Moving party to give notice.

Case Number: 19STLC11718    Hearing Date: September 02, 2020    Dept: 26

MOTION TO VACATE DEFAULT JUDGMENT

(CCP § 473(b))

TENTATIVE RULING:

Defendant Shake Sharon Daghlian’s Motion to Vacate Default Judgment is GRANTED. DEFENDANT SHAKE SHARON DAGHLIAN IS TO FILE AND SERVE RESPONSIVE PLEADING WITHIN 20 DAYS’ SERVICE OF THIS ORDER.

ANALYSIS:

Plaintiff American Tires Distributors, Inc. (“Plaintiff”) filed the instant action for breach of contract against Defendants 1st American Financial, Inc. dba Discount Tire and Service Centers (“Defendant 1st American Financial”) and Shake Sharon Daghlian (“Defendant Daghlian”) on December 23, 2019.

On April 6, 2020, Defendant Daghlian filed an Application for Fee Waiver; she filed a demurrer to the Complaint the next day. On April 8, 2020, the Fee Waiver Application was denied and notice of the same was served on Defendant Daghlian. Defendant Daghlian had until April 23, 2020 to correct the denial of the Fee Waiver Application but did not do so.

On April 29, 2020, Plaintiff filed a request for entry of default that was entered only as to Defendant 1st American Financial.

On June 23, 2020, the Court voided the demurrer filed by Defendant Daghlian on April 7, 2020 due to the failure to correct the fee waiver issue. Notice of the voiding was mailed to the parties on the same date. One day later, on June 24, 2020, the Court entered default judgment against both Defendants.

On July 1, 2020, Defendant Daghlian filed the instant Motion to Vacate Default Judgment (“the Motion”). Plaintiff filed an opposition on August 6, 2020 and Defendant Daghlian replied on August 26, 2020.

Discussion

Defendant Daghlian moves for relief from the default judgment pursuant to Code of Civil Procedure, section 473, subdivision (b). Under this statute, an application for relief must be made no more than six months after entry of the order 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.) The motion is brought pursuant to discretionary relief prong of section 473, subdivision (b) for Defendant Daghlian’s own mistake, inadvertence, surprise or neglect.

The Court finds relief is timely sought under the statute. The instant Motion was filed on July 1, 2020, shortly after entry of default judgment on June 24, 2020. The Motion is also supported by an affidavit of fault that explains Defendant Daghlian failed to timely correct the fee waiver issue due to the difficulties in meeting with an attorney or paralegal during the global COVID-19 pandemic. (Motion, Daghlian Decl., ¶4.) The Court finds Defendant Daghlian’s explanation credible given the timing of the statewide shutdown orders at the end of March, 2020 just weeks before denial of the Application for Fee Waiver. Finally, a copy of the proposed Answer is attached with the Reply, thereby satisfying the final requirement for relief under the statute. (Reply, Exh. B.)

The Court additionally notes that the default judgment appears procedurally defective. The entry of default against Defendant Daghlian was denied on April 29, 2020 and the Court file shows no change to that denial following the voiding of the demurrer on June 23, 2020. Under Code of Civil Procedure section 585, entry of default must precede default judgment. Here, as no default was entered against Defendant Daghlian the default judgment is improper.

Finally, the Court notes that entry of default and default judgment “with quiet speed” is looked upon with disfavor by the courts. (Lasalle v. Vogel (2019) 36 Cal.App.5th 127, 135.) Here, it does not appear that Plaintiff gave Defendant Daghlian notice that it would seek default judgment despite being aware that she filed a demurrer and sought to participate in this action. The Court finds this also weighs in favor of vacating the default judgment.

For all the foregoing reasons, Defendant Shake Sharon Daghlian’s Motion to Vacate Default Judgment is GRANTED. DEFENDANT SHAKE SHARON DAGHLIAN IS TO FILE AND SERVE RESPONSIVE PLEADING WITHIN 20 DAYS’ SERVICE OF THIS ORDER.

Court clerk to give notice.