CHRISTOPHER MARTINEZ VS LIVE TALKS PRODUCTIONS, LLC, ET AL.

Tentative Rulings

Case Number: 18STLC13507    Hearing Date: January 08, 2020    Dept: 94

Defendant Live Talks Productions, LLC’s Motion to Set Aside Default is GRANTED.

I. Background

On October 26, 2018, Plaintiff Christopher Martinez (“Plaintiff”) filed an action for violation of the Unruh Civil Rights Act against Live Talks Productions, LLC (“Live Talks”), Saje, and PHR LA Mart, LLC (“PHR”) (collectively, “Defendants”). On March 29, 2019, PHR filed an answer to Plaintiff’s complaint. Saje was dismissed from this action on January 5, 2019, and PHR was dismissed on October 18, 2019.

On May 6, 2019, default was entered against Live Talks. On November 6, 2019, Live Talks filed the instant Motion to Set Aside Default (the “Motion”).

To date, no opposition or reply briefs have been filed.

II. Legal Standard

A. CCP § 473(b)

Code of Civil Procedure section 473 provides, in pertinent part:

“The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer…proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months after the judgment, dismissal, order, or proceeding was taken.”

(Code Civ. Proc., § 473, subd. (b).)

The “[t]erm ‘surprise’ as used in section 473, refers to ‘some condition or situation in which a party…is unexpectedly placed to his injury, without any default or negligence of his own, which ordinary prudence could not have guarded against.’ [Citation]” (Hearn v. Howard (2009) 177 Cal.App.4^th 1193, 1206.)

III. Discussion

Live Talks’ motion is timely and is accompanied by a copy of the proposed answer to be filed as required.

1. Failure to Warn

Live Talks argues that default should be set aside because of the surprise tactics of Plaintiff, specifically, not warning Live Talks it would file an application for entry of default. (Mot., p. 2.)

While as a matter of professional courtesy counsel should give defendants notice of an impending default, counsel is under no legal obligation to do so. (Bellm v. Bellia (1984) 150 Cal.App.3d 1036, 1038.) However, by taking a default without giving the other party notice, plaintiff takes the risk that the trial court will grant relief from the default in its discretion. (Id; see also Fayusi v. Permatex, Inc. (2008) 167 Cal.App.4th 681, 701.) In the absence of a prior warning of default, courts are inclined to grant motions under Code of Civil Procedure section 473 subdivision (b) to set aside defaults. (Fayusi, (2008) 167 Cal.App.4th at p. n  702 (quoting Weil & Brown, Civil Procedure Before Trial (2007), 5:70.]

Here, Plaintiff knew that Live Talks was represented by Wagenseller Law Firm. (See Carrillo Decl., ¶¶ 10, 12, Exhs. A, B.)  Plaintiff knew that Live Talks had been suspended by the Franchise Tax Board and that it was undergoing revival efforts. (Id., ¶¶ 13-14, Exh. C.) Despite this, Plaintiff did not warn Live Talks he would submit an application for entry of default against it. (Id., ¶ 15.) Although setting aside default due to failure to warn is not required, the Court finds that it is appropriate here because of Live Talks’ situation with the Franchise Tax Board.

1. Failure to Serve

Live Talks also argues that Plaintiff “failed to serve the request for entry of default on either Live Talks or their counsel.” (Mot., p. 2.) However, Plaintiff’s Application for Entry of Default states that Live Talks was served through Ted Habte-Gabr, Live Talks’ Agent for Service of Process, by mail at 222 S. Figueroa St., Apt. 1421, Los Angeles, CA 90012. (5/6/19 Application for Entry of Default, ¶ 6(b).) Live Talks does not present any evidence or provide any additional facts that prove it was indeed not served. Further, Defendant does not demonstrate how Plaintiff’s purported failure to serve Live Talks with the application for entry of default entitles it to relief under Code of Civil Procedure section 473 subdivision (b).

IV. Conclusion & Order

For the foregoing reasons, Defendant Live Talks Productions, LLC’s Motion to Set Aside Default is GRANTED.

Moving party is ordered to give notice.Parties who intend to submit on this tentative must send an email to the Court at SMCdept94@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.