CHRISTOPHER MARTINEZ VS TOKIO LOS ANGELES LLC, ET AL.

Tentative Rulings

Case Number: 19STLC02278    Hearing Date: January 05, 2021    Dept: 25

HEARING DATE: Tue., January 5, 2021 JUDGE /DEPT: Blancarte/25

CASE NAME: Martinez v. Tokio Los Angeles, et al. COMP. FILED: 03-06-19

CASE NUMBER: 19STLC02278 DISC. C/O: 05-03-21

PROCEEDINGS: MOTION TO SET ASIDE DEFAULT PURSUANT TO CCP SECTION 473

MOVING PARTY: Defendant Dany Bitar

RESP. PARTY: None

MOTION TO SET ASIDE DISMISSAL

(CCP § 473(b))

TENTATIVE RULING:

Defendant Dany Bitar’s Motion to Set Aside Default Pursuant to CCP section 473 is GRANTED. The default entered against Defendant Dany Bitar on May 19, 2020 is HEREBY VACATED.

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 December 31, 2020 [ ] Late [X] None

REPLY: None filed as of December 31, 2020 [ ] Late [X] None

ANALYSIS:

1. Background

On March 6, 2019, Plaintiff Christopher Martinez (“Plaintiff”) filed an action for violation of the Unruh Civil Rights Act against Defendants Tokio Los Angeles, LLC (“Tokio”) and Underrated Presents, Inc. (“Underrated”). Dany Bitar (“Bitar”) filed a general denial on behalf of Defendant Tokio on June 21, 2019. Defendant Underrated filed an Answer on July 10, 2019 but was dismissed from the action on July 12, 2019.

Plaintiff substituted Defendant Bitar for Doe 1 on November 6, 2019. Defendant Bitar was personally served with the Summons and Complaint on April 15, 2019. (5/19/20 Proof of Service.) Following Defendant Bitar’s failure to respond, a default was entered against him on May 19, 2020. No judgment has yet been entered.

On July 17, 2020, Defendant Bitar filed the instant Motion to Set Aside Default Pursuant to CCP section 473 (the “Motion”). To date, no opposition has been filed.

1. Legal Standard & Discussion

Defendant Bitar seeks relief pursuant to Code of Civil Procedure section 473, subdivision (b). (Mot., pp. 1:27-2:19.) 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.)

Defendant Bitar’s Motion is timely. He seeks to set aside the May 19, 2020 default based on his mistake, inadvertence, surprise, or excusable neglect. (Mot., p 1:6-8.) Specifically, Defendant states that he mistakenly believed that the general denial he filed on behalf of Defendant Tokio was enough to protect his rights in this matter. (Mot., Bitar Decl., ¶ 4.) He also explains that although he acted diligently in seeking an attorney after being personally served, he had difficulty finding affordable legal representation and believed he had more time to retain an attorney. (Id. at ¶¶ 6-8.) Well-established law favors resolving cases on the merits and any doubts will be resolved in favor of the party seeking relief from default. (Fayusi v. Permatex, Inc. (2008) 167 Cal.App.4th 681, 696.)

Based on the timely request to vacate the dismissal supported by Defendant Bitar’s declaration attesting to his mistake, the unopposed Motion is GRANTED.

1. Conclusion & Order

For the foregoing reasons, Defendant Dany Bitar’s Motion to Set Aside Default Pursuant to CCP section 473 is GRANTED. The default entered against Defendant Dan Bitar on May 19, 2020 is HEREBY VACATED.

Moving party is ordered to give notice.