Tentative Rulings

Case Number: *******9145    Hearing Date: September 21, 2020    Dept: 26

IN ORDER TO IMPLEMENT PHYSICAL DISTANCING AND UNTIL FURTHER NOTICE, THE COURT STRONGLY ENCOURAGES ALL COUNSEL AND ALL PARTIES TO APPEAR REMOTELY FOR NON-TRIAL AND NON-EVIDENTIARY MATTERS, INCLUDING THIS MOTION.

Superior Court of California

County of Los Angeles

Department 26

Background

On March 6, 2020, Plaintiff Delfina Perez (“Plaintiff”) filed the instant action against defendants St. Clair Plastic Inc. (“Defendant”) and Employbridge, LLC alleging causes of action for (1) Failure to Pay Wages Worked, (2) Failure to Provide Meal Periods, (3) Failure to Provide Rest Periods, (4) Failure to Pay Overtime Wages, (5) Failure to Pay Wages Due Upon Termination: Waiting Time Penalties, (6) Failure to Issue Accurate Itemized Wage Statements, and (7) Unlawful/Unfair Business Practice.

On June 30, 2020, default was entered against Defendant. On July 30, 2020, Defendant filed the instant motion to set aside the entry of default. On September 8, 2020, Plaintiff filed an opposition. On September 14, 2020, Defendant filed a reply.

Legal Standard

Vacate Default

Code of Civil Procedure section 473(b) provides, in relevant 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 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.

(CCP ; 473(b).)

“Section 473 . . . [citation omitted].” (Elston v. City of Turlock (1985) 38 Cal.3d 227, 233-34.)

Accordingly, the court has broad discretion to vacate the entry of default, default judgment or a dismissal, but that discretion can be exercised only if the defendant establishes a proper ground for relief, by the proper procedure and within the set time limits. Pursuant to Code of Civil of Procedure section 473(b), a motion to set aside/vacate cannot be brought more than 6 months after the entry of default and must be made within a “reasonable time.” The six-month time limit is jurisdictional. (Rutan v. Summit Sports, Inc. (1985) 173 Cal.App. 3d 965, 970.) Six months is defined as half a year for the purposes of this section. (Davis v. Thayer, (1980) 113 Cal.App.3d 892, 901-904.)

Discussion

Validity of Service

Defendant contends that the service was invalid as the individual served on behalf of Defendant -- Claudia Morales -- was not authorized to accept service of process.

Under Code of Civil Procedure ; 473(d), “[t]he court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order.” (Ibid, [italics added].) Personal service on a corporation must be to the person designated as agent for service of process or “[t]o the president, chief executive officer, or other head of the corporation, a vice president, a secretary or assistant secretary, a treasurer or assistant treasurer, a controller or chief financial officer, a general manager, or a person authorized by the corporation to receive service of process.” (CCP ; 416.10(a-b).) Here, Defendant did not authorize Claudia Morales to accept service of process. Morales states that she is “an Office Manager at [Defendant].” (Morales Decl. ¶ 1.). It is questionable whether an “Office Manager” qualifies as a “general manager” for Defendant. Assuming, without deciding that service of process on Claudia Morales was valid, the court proceeds with the analysis below as to Defendant’s request to vacate entry of default pursuant to section 473(b).

Relief under Code of Civil Procedure ; 473(b)

Timeliness

Here, Defendant’s default was entered on June 30, 2020, and the motion to set aside the default was filed on July 30, 2020. As this application was made within 30 days of the entry of default it is within the six-month period. Accordingly, the Court has jurisdiction and authority to grant relief under Code of Civil Procedure ; 473(b).

Code of Civil Procedure ; 473(b)

“[Code of Civil Procedure ; 473(b)] includes a discretionary provision, which applies permissively, and a mandatory provision, which applies as of right. Although this bifurcation is not demarcated in any internal subtitling, it is plainly evident in the textual structure of the statute.” (Minick v. City of Petaluma (2016) 3 Cal.App.5th 15, 25.)

Under the discretionary standard specific facts must be demonstrating “mistake, inadvertence, surprise or excusable neglect[,]” (CCP ; 473(b) [italics added]), and “must show a satisfactory excuse for his default, and he must show diligence in making the motion after discovery of the default.” (Hopkins & Carley v. Gens (2011) 200 Cal.App.4th 1401, 1410.) However, the mandatory “provision requires the court to vacate any resulting default, default judgment or dismissal ‘whenever an application for relief ... is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect.’” (Las Vegas Land & Development Co., LLC v. Wilkie Way, LLC (2013) 219 Cal.App.4th 1086, 1092, [quoting CCP ; 473(b)].)

Defendant moves under both provisions (mandatory and discretionary) and urges the Court to set aside the entry of default under Code of Civil Procedure 473(b) due to mistake of fact and also under the mandatory provision. (Motion pp.5-7 ; IV.) Defendant has also attached a proposed answer to the complaint. (Motion, Ex. A.)

Discretionary Standard

Mistake of fact provides a ground for relief where Counsel was mistaken as to some fact material to Defendant’s duty to respond, by reason of which Defendant failed to make a timely response. (See e.g. Lieberman v. Aetna Ins. Co. (1967) 249 Cal.App.2d 515, 523–524.)

To support relief under the discretionary standard, Defendant presents the declaration of counsel Mathew C. Sgnilek, (“Counsel”) and Claudia Morales.

Claudia Morales states in her declaration that she was served on June 3, 2020 and subsequently informed Counsel. (Morales Decl. ¶ 2.) Counsel states that Claudia Morales informed him that she was personally served with the Complaint on June 3, 2020. (Sgnilek Decl. ¶ 2.) Accordingly, Counsel believed that a response was due within thirty days of June 3, 2020. (Ibid.) Counsel filed the answer on July 2, 2020, which the Court notes is reflected in the record. (Id. ¶ 4.)

In contrast to Morales’s declaration, Plaintiff’s proof of service indicates that service of process occurred on May 26, 2020 – not June 3, 2020. (Proof of Service, St. Clair Plastic Inc.) In opposition to the discretionary relief, Plaintiff contends that there is no evidence, namely a declaration, showing mistake, inadvertence, surprise, or excusable neglect.

Plaintiff has overlooked that Defendant has provided evidence through declarations, namely those of Counsel and Claudia Morales. Moreover, the court finds that Defense Counsel’s mistake of fact was reasonable and reasonably delayed Defendant’s filing a responsive pleading, namely that Defendant had been serve on June 3, 2020 not May 26, 2020. Notably, although Plaintiff’s proof of service reflects service on May 26, 2020, Plaintiff did not file the proof of service until June 30, 2020. Moreover, Plaintiff has failed to identify any prejudice stemming from Defendant’s filing of its answer on July 2, 2020 – less than one week after its due date and only two days after Plaintiff filed proof of service of the summons and complaint.

Accordingly, Defendant’s motion to vacate the June 30, 2020, entry of default is GRANTED under the discretionary prong of Code of Civil Procedure ; 473(b).

Conclusion and ORDER

Based on the foregoing, Defendant St. Clair’s motion to set aside the entry of default is GRANTED. The default entered against Defendant St. Clair on June 30, 2020 is vacated. Defendant is to file its answer within 10 days. The case management conference is continued to October 8, 2020 at 9:30 am.

Moving parties are to provide notice of this order and file proof of service.

DATED: September 21, 2020 ___________________________

Elaine Lu

Judge of the Superior Court