On 07/03/2018 JASMIN DIAZ filed a Civil Right - Other Civil Right lawsuit against GELB ENTERPRISES. This case was filed in Los Angeles County Superior Courts, Spring Street Courthouse located in Los Angeles, California. The Judge overseeing this case is JON R. TAKASUGI. The case status is Other.
Spring Street Courthouse
Los Angeles, California
JON R. TAKASUGI
RMG BOWL PARTNERS LLC
CANOGA PARK BOWL LLC
2/18/2020: Request for Dismissal - Request for Dismissal
10/1/2019: Motion to Set Aside/Vacate Default and / or Default Judgment - Motion to Set Aside/Vacate Default and / or Default Judgment
10/9/2019: Opposition (name extension) - Opposition to Motion to Set Aside Default & Default Judgment
10/9/2019: Notice of Change of Address or Other Contact Information - Notice of Change of Address or Other Contact Information
11/20/2019: Minute Order - Minute Order (Hearing on Motion to Set Aside/Vacate Default and Default Jud...)
11/8/2018: Request for Entry of Default / Judgment - Request for Entry of Default / Judgment
3/25/2019: Notice of Change of Firm Name - Notice of Change of Firm Name
7/10/2019: Request for Entry of Default / Judgment - Request for Entry of Default / Judgment
7/10/2019: Declaration Pursuant to 585 CCP in Support of Default Judgment - Declaration Pursuant to 585 CCP in Support of Default Judgment
8/5/2019: Default Judgment - Default Judgment
9/7/2018: Proof of Personal Service
7/3/2018: Summons - on Complaint
7/3/2018: Notice of Case Assignment - Limited Civil Case
DocketNon-Jury Trial scheduled for 08/19/2020 at 08:30 AM in Spring Street Courthouse at Department 25 Not Held - Vacated by Court on 02/25/2020Read MoreRead Less
DocketAddress for Morse Mehrban (Attorney) nullRead MoreRead Less
DocketOn the Complaint filed by Jasmin Diaz on 07/03/2018, entered Request for Dismissal with prejudice filed by Jasmin Diaz as to the entire actionRead MoreRead Less
DocketRequest for Dismissal; Filed by: Jasmin Diaz (Plaintiff); As to: Canoga Park Bowl, LLC (Defendant)Read MoreRead Less
DocketNon-Jury Trial scheduled for 08/19/2020 at 08:30 AM in Stanley Mosk Courthouse at Department 94Read MoreRead Less
DocketUpdated -- Motion to Set Aside/Vacate Default and / or Default Judgment: Filed By: Canoga Park Bowl, LLC (Defendant); Result: Granted; Result Date: 11/20/2019Read MoreRead Less
DocketCertificate of Mailing for [Minute Order (Hearing on Motion to Set Aside/Vacate Default and Default Jud...)]; Filed by: ClerkRead MoreRead Less
DocketOn the Complaint filed by Jasmin Diaz on 07/03/2018, Default entered on 07/10/2019, Vacated - .Read MoreRead Less
DocketOn the Complaint filed by Jasmin Diaz on 07/03/2018, judgment entered on 08/05/2019 as to Canoga Park Bowl, LLC isRead MoreRead Less
DocketUpdated -- On the Complaint filed by Jasmin Diaz on 07/03/2018, judgment entered on 08/05/2019 is vacatedRead MoreRead Less
DocketProof of Personal Service; Filed by: Jasmin Diaz (Plaintiff); As to: RMG Bowl Partners, LLC (Defendant); Service Date: 08/07/2018; Service Cost: 40.00; Service Cost Waived: NoRead MoreRead Less
DocketAnswer; Filed by: GELB Enterprises (Defendant); RMG Bowl Partners, LLC (Defendant)Read MoreRead Less
DocketAmendment to Complaint (Fictitious/Incorrect Name); Filed by: Jasmin Diaz (Plaintiff); As to: Canoga Park Bowl, LLC (Defendant); Type: Fictitious NameRead MoreRead Less
DocketNotice of Case Assignment - Limited Civil Case; Filed by: ClerkRead MoreRead Less
DocketSummons on Complaint; Issued and Filed by: ClerkRead MoreRead Less
DocketCivil Case Cover Sheet; Filed by: Jasmin Diaz (Plaintiff)Read MoreRead Less
DocketComplaint; Filed by: Jasmin Diaz (Plaintiff); As to: GELB Enterprises (Defendant); RMG Bowl Partners, LLC (Defendant)Read MoreRead Less
DocketCase assigned to Hon. Jon R. Takasugi in Department 94 Stanley Mosk CourthouseRead MoreRead Less
DocketNon-Jury Trial scheduled for 12/31/2019 at 08:30 AM in Stanley Mosk Courthouse at Department 94Read MoreRead Less
DocketOrder to Show Cause - Failure to File Proof of Service scheduled for 07/06/2021 at 08:30 AM in Stanley Mosk Courthouse at Department 94Read MoreRead Less
Case Number: 18STLC09212 Hearing Date: November 20, 2019 Dept: 94
Diaz v. Gelb Enterprises, et al.
MOTION TO VACATE DEFAULT AND DEFAULT JUDGMENT
(CCP § 473(b); Equity)
Defendant Canoga Park Bowl LLC’s Motion to Set Aside Default Judgment is DENIED.
On July 3, 2018, Plaintiff Jasmin Diaz (“Plaintiff”) filed a complaint against Defendants Gelb Enterprises, RMG Bowl Partners, LLC, and Does 1-10 for violation of the Unruh Civil Rights Act (Civil Code § 51.) On August 8, 2018, Plaintiff filed an Amendment to Complaint naming Canoga Park Bowl, LLC (“Canoga”) as a defendant. On November 8, 2018, Plaintiff filed a proof of service alleging that it served Mr. David Friedrich, Canoga’s authorized agent, with the summons and complaint via personal service on October 4, 2018. Also on November 8, 2018, Default was entered against Canoga, and on August 5, 2019, judgment was entered in favor of Plaintiff against Canoga. On July 10, 2019, Plaintiff filed a Request for Dismissal dismissing defendants Gelb Enterprises and RMG Bowl Partners, LLC. On October 10, 2019, Canoga filed the instant Motion to Set Aside Default Judgment and Request Sanctions in the Amount of $1,000 (the “Motion”) against Plaintiff’s Attorney. On October 9, 2019, Plaintiff filed an opposition, and on October 28, 2019, Canoga filed its reply
Relief Under CCP § 473(b)
CCP § 473(b) provides in pertinent part “[t]he 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 or other pleading 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.”
“‘[W]hen relief under section 473 is available, there is a strong public policy in favor of granting relief and allowing the requesting party his or her day in court. Beyond this period there is a strong public policy in favor of the finality of judgments and only in exceptional circumstances should relief be granted.’ [Citations.]” (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981–982.)
Here, default judgment was entered in Plaintiff’s favor against Canoga on August 5, 2019, which was less than two months before the Motion was filed. Thus, Canoga’s motion is timely under CCP § 473(b). Further, the court notes that Canoga attached a copy of its proposed answer to the Motion. (Mot. Exh. G.)
The relevant proof of service alleges that Canoga was served with copies of the summons and complaint. (Proof of Service filed 11/08/18.) Moreover, the proof of service lists that the documents served as: Summons, Complaint, Complaint for Damages, First Amended Standing Order Civil Limited Jurisdiction Cases Calendared in Dept. 94, Notice of Case Assignment-Limited Civil Case, Notice of Availability of Limited Civil Jurisdiction Web Portal for Interpreter Requests, and Amendment to Complaint. The proof of service shows that a Sheriff’s Deputy served the documents.
When service is carried out by a registered process server, the proof of service “establishes a presumption, affecting the burden of producing evidence, of the facts stated in the return.” (Palm Property Investment, LLC v. Yadegar (2011) 194 Cal.App.4th 1419, 1428 (citing Evid. Code § 647).) “ ‘The effect of a presumption affecting the burden of producing evidence is to require the trier of fact to assume the existence of the presumed fact unless and until evidence is introduced which would support a finding of its nonexistence, in which case the trier of fact shall determine the existence or nonexistence of the presumed fact from the evidence and without regard to the presumption.’ ” (Id.)
Accordingly, a party seeking to defeat service of process must present sufficient evidence to show that the service did not take place as stated. (See Id.; cf. People v. Chavez (1991) 231 Cal.App.3d 1471, 1483 [“If some fact be presumed, the opponent of that fact bears the burden of producing or going forward with evidence sufficient to overcome or rebut the presumed fact.”].) Merely denying service took place without more is insufficient to overcome the presumption. (See Yadegar, 194 Cal.App.4th at 1428.)
While Canoga asserts that it was not served with the Complaint or the Amendment to Complaint, it does not offer any corroborating evidence demonstrating that it was not served with the documents listed in the proof of service. Canoga submits the declaration Mr. Friedrich stating that he has no recollection of being served with the summons and complaint, and if he had received them, he would have forwarded the documents to Canoga’s legal counsel. (Mot. Friedrich Decl. ¶¶ 5-6.) Mr. Friedrich asserts that he did not receive the lawsuit and does not believe it was served on him or Canoga’s offices. (Id. at ¶ 9.) However, to the extent that Canoga was not properly served with the Complaint and Amendment to Complaint, a mere denial of service is not sufficient to vacate default judgment. (See Yadegar, 194 Cal.App.4th at 1428.) Furthermore, Mr. Friedrich’s assertion that he does not believe the Complaint and Amendment to Complaint were served does not amount to mistake, surprise, inadvertence, or excusable neglect.
Thus, Canoga fails to establish that it is entitled to have the default set aside under CCP § 473(b).
Notice Before Default Taken
A plaintiff’s attorney has an ethical obligation to warn a defendant before moving for default, where the plaintiff knows that defendant is represented by counsel. (Fasuyi v. Permatex, Inc. (2008) 167 Cal.App.4th 681, 701.) “If plaintiff's counsel knows the identity of the lawyer representing defendant, he or she owes an ethical obligation to warn before requesting entry of defendant's default. Failure to do so is a professional discourtesy to opposing counsel that will not be condoned by the courts.” (Id.) However, “[t]he duty to warn opposing counsel is an ethical rather than a legal requirement.” (Id.)
“While as a matter of professional courtesy counsel should have given notice of the impending default, and we decry this lack of professional courtesy, counsel was under no legal obligation to do so. By taking a default without giving notice, counsel took the risk that the trial court would grant relief from the default, but the failure to notify did not require the court to grant relief.” (Bellm v. Bella (1984) 150 Cal.App.3d 1036, 1038.)
In this case, Canoga asserts that Plaintiff was aware that Canoga was represented by counsel, which was the same counsel representing the other defendants in this matter, but that Plaintiff did not notify defense counsel it was seeking to take Canoga’s default. While the court denounces this lack of professional courtesy, the court notes that Plaintiff’s duty to warn Defendant’s counsel is an ethical obligation and not a legal requirement. (Fasuyi, 167 Cal.App.4th at 701.) Thus, Plaintiff’s counsel’s failure to warn Canoga of the default does not as a matter of law take away this court’s discretion to deny the motion to set aside default. (See Bellm, 150 Cal.App.3d at 1038.)
Canoga only contends that it does not believe that it was served with the Complaint and Amendment to Complaint, but as analyzed above, Canoga has not offered any evidence to rebut the presumption afforded by Evidence Code § 647 that service was proper. Under the facts and evidence presented, the court does not set aside the default judgment.
Conclusion & Order
For the stated reasons, the Motion to Set Aside Default Judgment and Request for Sanctions is DENIED.
Clerk of Court is to give notice.
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