Judge: Audra Mori, Case: 19STCV00403, Date: 2023-01-05 Tentative Ruling

Case Number: 19STCV00403    Hearing Date: January 5, 2023    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background

Plaintiff Jocelyn Sherry (“Plaintiff”) filed this action against Defendant RSSN, Inc., a California Corporation dba Sage Restaurant and Lounge (“Defendant”) for injuries relating to Plaintiff’s slip and fall on Defendant’s property. 

On August 12, 2019, Plaintiff obtained Defendant’s default.  On July 15, 2022, Plaintiff filed the instant Motion to Set Aside Plaintiff’s Request for Default Judgment pursuant to CCP § 473.  The motion is unopposed. 

Although titled a motion to set aside Plaintiff’s request for default judgment, Plaintiff is clearly seeking to set aside the default entered against Defendant.  Plaintiff provides her counsel made a typographical error in Plaintiff’s statement of damages that was served on Defendant prior to the entry of default.  In the general damages section, Plaintiff’s counsel entered $1,000.00 for pain, suffering, and inconvenience, when counsel should have entered $1,000,000.00.  Plaintiff states that when the mistake was caught, Plaintiff served an amended statement of damages on Defendant with the correct amount.  However, Plaintiff acknowledges the effort was invalid because Defendant was served after Defendant’s default was entered.  Plaintiff asserts she is not able to move forward with a request to enter a default judgment against Defendant as a result.

Plaintiff seeks an order to set aside the default to allow Plaintiff to properly serve the corrected statement of damages on Defendant, and to allow Defendant 30 days to answer the complaint. 

2. Motion to Set Aside Default

CCP § 128(a)(8) provides that every court has the power to “amend and control its process and orders so as to make them conform to law and justice.”  Moreover, the court has certain inherent powers to enforce the spirit of the Code of Civil Procedure.  (CCP § 187; see Del Riccio v. Superior Court of Cal., in and for Los Angeles County (1952) 115 Cal.App.2d 29, 31 [“In the exercise of equitable jurisdiction the court undoubtedly has broad discretionary powers to take whatever action is necessary in the interests of justice in order that its decrees will not fail to accomplish their purpose.”]; accord. Aldrich v. San Fernando Valley Lumber Co. (1985) 170 Cal.App.3d 725, 736-39 [A trial court has an inherent equity power under which, apart from statutory authority, it may grant relied from a default judgment obtained through mistake.].)

A trial court also has an inherent equity power under which, apart from statutory authority, it may grant relief from a default judgment obtained through extrinsic fraud or mistake.  (Aldrich v. San Fernando Valley Lumber Co. (1985) 170 Cal.App.3d 725, 736-39.)  Extrinsic fraud or mistake can “encompass almost any set of extrinsic circumstances which deprive a party of a fair adversary hearing.”  (Marriage of Park (1980) 27 Cal.3d 337, 342.)  The term “extrinsic mistake” has been “broadly applied when circumstances extrinsic to the litigation have unfairly cost a party a hearing on the merits.” (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981.)  While this provision may not be directly applicable here, it recognizes that a default judgment should not be based upon an acknowledged mistake.   

In this case, Plaintiff provides she served Defendant with the complaint, summons, and her statement of damages on January 17, 2019, but the statement of damages mistakenly listed Plaintiff’s pain and suffering damages as $1,000.00 instead of the correct $1,000,000.00 Plaintiff intended.  Defendant’s default was entered by the Court Clerk on August 12, 2019, and Plaintiff states she cannot proceed with a default judgment against Defendant because of the typographical error in the statement of damages served on Defendant prior to the entry of default.  Plaintiff’s counsel submits a declaration attesting that the typo was made as a result of Plaintiff’s counsel’s mistake, inadvertence, or neglect.  Additionally, Plaintiff was not involved or responsible for Plaintiff’s counsel’s typo on the statement of damages.  Defendant was served with this motion and did not oppose it.  There is no showing of any prejudice to Defendant by setting aside the default against it.  (See Aldrich, 170 Cal.App.3d at 739 [“Where a client is unknowingly deprived of effective representation by counsel the client will not be charged with responsibility for misconduct if the client acts with due diligence in moving for relief after discovering the attorney's neglect and if the other side will not be prejudiced by the delay.”].)  Rather, Defendant would be receiving another opportunity to file a responsive pleading to the complaint.[1] 

            The motion is therefore granted.  The default entered against Defendant RSSN, Inc., a California Corporation dba Sage Restaurant and Lounge on August 12, 2019 is set aside.  Plaintiff is ordered to serve Defendant with the summons, complaint, statements of damages, related documents, and a copy of this order all in the same manner as the summons within 20 days.  Defendant thereafter is to file its responsive pleading within 30 days.  Given the age of the case, Plaintiff must move expeditiously in prosecuting this action against Defendant. 

Plaintiff is ordered to give notice. 

PLEASE TAKE NOTICE:

• Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement.
• If a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept31@lacourt.org with the Subject line “SUBMIT” followed by the case number.  The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.  
• Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.  You should assume that others may appear at the hearing to argue.  
• If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.  After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave. 

Dated this 5^th day of January 2023