Judge: Christian R. Gullon, Case: 22PSCV01087, Date: 2024-05-07 Tentative Ruling

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Case Number: 22PSCV01087    Hearing Date: May 7, 2024    Dept: O

Tentative Ruling

(1)   MOTION FOR ORDER VACATING ENTRY OF DEFAULT AGAINST DEFENDANT, CHRISTIANA O. GREENE IS GRANTED.

(2)   Benjamin Berger’s MOTION TO BE RELIEVED AS COUNSEL is GRANTED, effective upon [see below].

Background

This is a wrongful termination case.

On September 20, 2022, Plaintiff JULIE MOSER filed suit against Defendants ONE TOUCH OF CHRIST EVANGELISTIC MINISTRIES, a California non-profit religious corporation dba ONE TOUCH RECOVERY CENTER (“Ministry”); CHRISTIANA O. GREENE asserting the following causes of action (COAs):

On February 14, 2024, Ministry filed its answer.

On February 16, 2024, default was entered against Greene.

On March 27, 2024, Counsel Benjamin Berger, Sasha Chegini &Berger Harrison, APC for Ministry filed the instant motion.

On April 2, 2024, Plaintiff filed a Motion For Order Vacating Entry Of Default Against Defendant, Christiana O. Greene.

Discussion

1.     Set Aside Default

Plaintiff makes the motion on the grounds that a statement of damages was not served upon Greene prior to entry of default. Indeed, it is well settled that a plaintiff may not take a defendant's default without giving the defendant actual notice of the amount of damages claimed. (Code of Civ. Proc., § 425.11, subds. (b), (c), see also Matera v. McLeod (2006) 145 Cal.App.4th 44, 60.) In fact, absent service of the statement of damages, the underlying default is void. (Department of Fair Employment & Housing v. Ottovich (2014) 227 Cal.App.4th 706, 712.) Thus, to proceed with entry of default judgment, the default against Greene should be void until she is properly served with a Statement of Damages.

Therefore, the court sets aside and vacates the default taken on 2/16/23 against Defendant Greene.

2.     Relieved as Counsel

Counsel Berger states that “Certain facets of the attorney-client relationship have deteriorated to the point that attorney is unable to continue representing One Touch of Christ Evangelistic Ministries.” (MC-052 Form.)

Here, absent an opposition by Defendant Ministry, the court finds no prejudice in granting the motion, notably as there are no substantive motions on calendar that involve Ministry. Additionally, Counsel has complied with California Rules of Court Rule 3.1362 as the MC-051, 052, and 053 forms have been filed.

Notwithstanding, the only defect the court finds is that not all parties have been served with notice of the motion; the proof of service indicates that only Ministry was served.

Based on the foregoing, Counsel’s Motion to Be Relieved as Counsel is GRANTED, effective upon serving notice of the motion upon all parties and service of this court’s order relieving Counsel sent to Plaintiff, Defendants, and all other parties who have appeared in the case.

Conclusion

Based on the foregoing, both motions are granted, and the motion to be relieved as counsel is effective upon service of motion and the court’s order upon all parties.