Judge: Daniel S. Murphy, Case: 23STCV07321, Date: 2024-01-19 Tentative Ruling

Case Number: 23STCV07321    Hearing Date: January 19, 2024    Dept: 32

BACKGROUND

            On April 3, 2023, Plaintiff Brian Whitaker filed this action for damages and injunctive relief against Defendant La Brea 1292 LLC. The complaint alleges violations of the Unruh Act and Disabled Persons Act.

            Defendant did not answer the complaint, and on July 29, 2023, the Court entered default judgment for Plaintiff in the amount of $8,890.53.

            On December 8, 2023, Defendant filed the instant motion to set aside the default. Plaintiff has not filed an opposition.  

LEGAL STANDARD

“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.” (Code Civ. Proc., § 473(b).) Because the law favors resolution on the merits, doubts are resolved in favor of the party requesting relief, and only “slight evidence” is needed to justify relief. (Caldwell v. Methodist Hospital (1994) 24 Cal.App.4th 1521, 1524.) “[C]ourts have often granted relief pursuant to the discretionary relief provision of section 473 if no prejudice to the opposing party will ensue.” (Comunidad en Accion v. Los Angeles City Council (2013) 219 Cal.App.4th 1116, 1132-1133.) Section 473(b) also provides for mandatory relief in instances of attorney mistake, “unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.” Additionally, Section 473(d) authorizes a court to “set aside any void judgment or order.”

DISCUSSION

I. Judgment Unsupported by Evidence

            Defendant’s primary argument is that the judgment is void as being unsupported by evidence. Specifically, Defendant contends that the evidence presented in Plaintiff’s declaration show that no ADA violation occurred. Defendant points out that the ADA requirements apply to “elements” of a building, and the table shown in Plaintiff’s photograph is not an “element” attached to a building. (Mtn. 7:7-8:6.) Additionally, Defendant points out that the ADA inspector never actually measured the toe clearance of the table, thereby never establishing that the table violated ADA standards for toe clearance. (Mtn. 8:7-17.) Plaintiff does not oppose the motion and therefore presents no rebuttal argument.  

II. Improper Service of Process

“A summons may be served by personal delivery of a copy of the summons and of the complaint to the person to be served.” (Code Civ. Proc., § 415.10.) Alternatively, a summons may be served by leaving a copy of the summons and complaint at the person’s dwelling house, usual place of abode, usual place of business, or usual mailing address, in the presence of a competent member of the household or a person apparently in charge, at least 18 years of age, who shall be informed of the contents thereof, and by thereafter mailing a copy of the summons and complaint to the same location. (Id., § 415.20.)

Defendant’s agent for service of process is Theodoro Vasquez-Solis, whose address is 7665 Firestone Blvd., Downey. (Vargas Decl. ¶ 4.) The proof of service that Plaintiff filed on April 27, 2023, claims substitute service at the Downey location on an individual named Carolina Montes, identified as the “person in charge.” Ms. Montes was a cashier and was not in charge of the restaurant at the time of service. (Vargas Decl. ¶¶ 5-6.) Defendant argues that service was deficient because there is no evidence of the process server’s diligent attempt to personally serve Mr. Vasquez-Solis or any evidence supporting the process server’s perception of Ms. Montes as a person in charge. Plaintiff does not oppose the motion and therefore presents no rebuttal argument.

III. Mistake or Excusable Neglect

            Lastly, Defendant moves to set aside the default on the grounds of attorney mistake. Specifically, at the time defense counsel received notice of this lawsuit from Defendant, the law firm was in the midst of a major turnover. (Sheik Decl. ¶¶ 4-5.) Defense counsel therefore inadvertently overlooked the complaint. (Ibid.) Defense counsel admits to the mistake and avers that Defendant did not contribute to the failure to respond to the lawsuit. (Id., ¶¶ 6-7.) This independently warrants relief under Section 473(b). Plaintiff does not oppose the motion and therefore presents no rebuttal argument.

CONCLUSION

            Defendant’s motion to set aside default is GRANTED. Answer shall be filed within 10 days.