Judge: Anne Richardson, Case: 24STCV11248, Date: 2024-10-16 Tentative Ruling

Case Number: 24STCV11248    Hearing Date: October 16, 2024    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

I. Background

A. Pleadings

Plaintiff Menachem Green (Green) sues Defendant CA Glatt Mart, Inc., (Glatt Mart) and Does 1 through 50, pursuant to a May 6, 2024, Complaint alleging causes of action for (1) Violation of the Unruh Civil Rights Act, and (2) Violation of the California Disabled Persons Act.

Glatt Mart is a grocery store located in Los Angeles, California. Green is a legally blind person and a member of a protected class under the Americans with Disabilities Act (ADA). The Complaint arises from allegations that Glatt Mart’s website fails to comply with accessibility requirements under the ADA and California law, and that the physical store premises fail to comply with ADA standards. Green contends that he has been denied full and equal use of the Glatt Mart facility and website because of these improper digital and physical access barriers.

B. Relevant Procedural History

The Complaint was served on Glatt Mart on June 10, 2024, via substituted service. Glatt Mart failed to timely respond to the Complaint, prompting Green to seek entry of default. The Clerk entered default on August 9, 2024.

C. Motion Before the Court

On September 16, 2024, Glatt Mart filed the instant motion to set aside the default on the grounds that Glatt Mart reasonably believed that its insurer would be defending in this action.

That same day, Glatt Mart filed its proposed Answer to the Complaint.

Green has not opposed the motion.

II. Motion

A. Legal Standard

“A motion for relief under section 473 is addressed to the sound discretion of the trial court and an appellate court will not interfere unless there is a clear showing of an abuse. [Citation.] The statute is remedial and should be liberally applied to carry out the policy of permitting trial on the merits, but the moving party has the burden of showing good cause. [Citations.]” (David v. Thayer (1980) 133 Cal.App.3d 892, 904-905.) 

Section 473 subdivision (b) of the Code of Civil Procedure provides for both discretionary and mandatory relief from a judgment, dismissal, and/or order or other proceeding taken against a party through his or her mistake, inadvertence, surprise, or excusable neglect. (Code Civ. Proc., § 473, subd. (b) [mandatory relief more narrowly targeted to defaults, default judgments, and dismissals]; Pagnini v. Union Bank, N.A. (2018) 28 Cal.App.5th 298, 302.) 

The discretionary provision of section 473, subdivision (b), states that “[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.” (Code Civ. Proc., § 473, subd. (b).) Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein and be made within a reasonable time not exceeding six months, after the judgment, dismissal, order, or proceeding was taken. (Code Civ. Proc., § 473, subd. (b).) 

Relief is mandatory pursuant to this statutory section when a proper application for relief is accompanied by a sworn affidavit from an attorney attesting to his or her mistake, inadvertence, surprise, or excusable neglect in causing the adverse judgment, dismissal, order, or proceeding against the defendant.  (Code Civ. Proc., § 473, subd. (b).) 

B. Analysis

Glatt Mart brings this motion to set aside default on the grounds that default was entered based on excusable neglect, mistake, and/or surprise. Glatt Mart contends that it believed that its insurer, AmGUARD Insurance, was defending it in this action. (Mot. p. 3:13-14.) This position is supported by the Declaration of Aaron Nourollah, who is the CEO of Glatt Mart:

“On August 22, 2024, Glatt Mart received a letter from AmGUARD informing us that [Green] had tendered a claim against [Glatt Mart’s] insurance and stating that AmGUARD had a "duty to defend" [Glatt Mart]. Based on this communication, I believed that AmGUARD would be retaining counsel to defend [Glatt Mart].” (Nourollah Decl. ¶¶ 4-5.) Upon learning that AmGUARD would not be defending Glatt Mart, Mr. Nourollah retained counsel to represent Glatt Mart in this matter. (Nourollah Decl. ¶ 7.)

The Court finds that these grounds are sufficient to support a finding that Glatt Mart’s excusable neglect led to entry of default against it.

Accordingly, the motion to set aside default against Glatt Mart is GRANTED. 

III. Conclusion

Defendant CA Glatt Mart, Inc.’s Motion to Set Aside Default is GRANTED because the entry of default resulted from the excusable neglect of Glatt Mart’s CEO in failing to realize that Glatt Mart’s insurer would not provide Glatt Mart with legal representation in this action.

The Entry of Default entered by the Clerk against Glatt Mart on August 9, 2024, is VACATED.  

CA Glatt Mart, Inc.’s Answer to the Complaint, as proposed, shall be filed within five court days.