CHRISTOPHER MARTINEZ VS NABU WINES LLC, ET AL.

Tentative Rulings

Case Number: 20STLC01609    Hearing Date: January 27, 2021    Dept: 25

HEARING DATE: Wed., January 27, 2021 JUDGE /DEPT: Blancarte/25

CASE NAME: Martinez v. Nabu Wines, LLC, et al. COMPL. FILED: 02-19-20

CASE NUMBER: 20STLC01609 DEFAULT: 05-08-20

PROCEEDINGS: MOTION TO SET ASIDE DEFAULT AND DEFAULT JUDGMENT

MOVING PARTY: Defendants Nabu Wines, LLC and Gregory Neal Barnett

RESP. PARTY: None

MOTION TO SET ASIDE DEFAULT AND DEFAULT JUDGMENT

(CCP § 473(b))

TENTATIVE RULING:

Defendants Nabu Wines, LLC and Gregory Barnett’s Motion is GRANTED ON THE CONDITION THAT, before the hearing, Defendants file a proof of service demonstrating Plaintiff was properly served with the Motion. If Defendants do so, the default entered on May 8, 2020 and default judgment entered on May 21, 2020 will be VACATED and Defendants will have ten (10) days from the date of the order to file their proposed answer. Otherwise, the hearing will be CONTINUED TO MARCH 25, 2021 at 11:00 a.m. in Department 25 at the SPRING STREET COURTHOUSE to allow Defendants an opportunity to file an amended proof of service.

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: None filed as of January 25, 2021 [ ] Late [X] None

REPLY: None filed as of January 25, 2021 [ ] Late [X] None

ANALYSIS:

1. Background

On February 19, 2020, Plaintiff Christopher Martinez (“Plaintiff”) filed a complaint alleging violation of the Unruh Civil Rights Act against Defendants Nabu Wines, LLC (“Nabu”) and Gregory Neal (“Neal”) (collectively, “Defendants”). Following Defendants’ failure to respond, default was entered against them on May 8, 2020. A default judgment of $5,125.00 was entered on May 21, 2020.

Defendants filed the instant Motion to Set Aside Default and Default Judgment (the “Motion”) on August 26, 2020. To date, no opposition has been filed.

1. Legal Standard & Discussion

Defendants seek relief pursuant to Code of Civil Procedure section 473, subdivision (b). (Mot., pp. 4:11-5:13.) Under this statute, an application for relief 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.)

Defendants’ Motion is timely. It seeks to set aside the default and default judgment entered on May 8, 2020 and May 21, 2020, respectively, due to Paul A. Elkort’s (“Elkort”) mistake, inadvertence, or excusable neglect. (Mot., pp. 4:11-5:13.) Elkort is Defendants’ private attorney. (Id.) Elkort states that Defendant Barnett informed him the Complaint had been served on Defendants in or about March 2020. (Mot., Elkort Decl., ¶ 4.) He states he advised Barnett to tender the lawsuit to their general liability insurance carrier to see if they would provide coverage to Defendants for the lawsuit. (Id.) He spoke to Defendant Barnett the first week of May, asked about the instant lawsuit, and understood that Defendant Barnett had tendered the lawsuit but had not yet heard a response from their insurance carrier regarding coverage. (Id. at ¶ 5.) Subsequently, in late June 2020, Defendant Barnett told Elkort that during the May 2020 conversation Defendant Barnett informed Elkort the insurance carrier had denied coverage. (Id. at ¶ 6.) As a result of Elkort’s misunderstanding during the May 2020 conversation regarding insurance liability coverage, the default and default judgment were entered. (Id. at ¶¶ 8-9.)

Based on the timely request to vacate the dismissal supported by an attorney affidavit of fault, the Court is inclined to vacate the default and default judgment. However, the proof of service demonstrates that Plaintiff may not have received notice of this Motion. Specifically, Defendants served the Motion at the correct address, but omitted Plaintiff’s counsel’s suite number. (See 8/26/20 Proof of Service.) In the interest of judicial economy, however, the Motion is GRANTED ON THE CONDITION THAT, before the hearing, Defendants file a proof of service demonstrating Plaintiff was properly served. Otherwise, the hearing will be CONTINUED.

1. Conclusion & Order

For the foregoing reasons, Defendants Nabu Wines, LLC and Gregory Barnett’s Motion is GRANTED ON THE CONDITION THAT, before the hearing, Defendants file a proof of service demonstrating Plaintiff was properly served with the Motion. If Defendants do so, the default entered on May 8, 2020 and default judgment entered on May 21, 2020 will be VACATED and Defendants will have ten (10) days from the date of the order to file their proposed answer. Otherwise, the hearing will be CONTINUED TO MARCH 25, 2021 at 11:00 a.m. in Department 25 at the SPRING STREET COURTHOUSE to allow Defendants an opportunity to file an amended proof of service.

Moving party is ordered to give notice.