Judge: David B. Gelfound, Case: 23CHCV00285, Date: 2024-05-03 Tentative Ruling

Case Number: 23CHCV00285    Hearing Date: May 3, 2024    Dept: F49

LOS ANGELES SUPERIOR COURT

NORTH VALLEY DISTRICT

DEPARTMENT F49

MOTION FOR RELIEF FROM DEFAULT AS TO NORTHPOINT SCHOOL

Motion filed: 4/4/24

MOVING PARTY: Defendant Child and Family Guidance Center (“CFGC” or “Defendant”)

RESPONDING PARTY: Plaintiff Alan Martinez (“Plaintiff”)

NOTICE: OK 

RELIEF REQUESTED: An order from this Court to set aside the default entered by the Clerk on March 13, 2024, against Northpoint School (“Northpoint”).

TENTATIVE RULING: The Motion to Set Aside is GRANTED.

BACKGROUND

This case arises from alleged injuries sustained by Plaintiff, caused by another student while attending Defendants’ school.

On February 1, 2023, Plaintiff filed a Complaint against Defendants CFGC, Northpoint School, and Does 1 to 50, alleging six causes of actions: (1) Negligence, (2) Negligent Retention/Hiring of Employees, (3) Battery, (4) Assault, (5) Intentional Infliction of Emotional Distress, and (6) Negligent Infliction of Emotional Distress. Subsequently, on April 10, 2023, Defendant CFGC filed its Answer, claiming it is the sole Defendant, erroneously sued as both CFGC and Northpoint.

On March 12, 2024, Plaintiff submitted the Request for Entry of Default against Northpoint (the “Default”), which was entered by the Clerk on the same day.

On April 4, 2024, CFGC filed the instant Motion to Set Aside the Default entered by the Clerk on March 13, 2024 (the “Motion”).

On April 22, 2024, Plaintiff filed an Opposition to the Motion. Subsequently, CFGC replied on April 29, 2024.

ANALYSIS

The first portion of Code of Civil Procedure section 473 subdivision (b) vests the trial court with the discretion to vacate a judgment on a party’s or attorney’s excusable neglect. (Todd v. Thrifty Corp. (1995) 34 Cal.App.4th 986, 991.) It states in pertinent 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.” (Code Civ. Proc., § 473, subd. (b).)

Furthermore, Code of Civil Procedure section 128, subdivision (a)(8) sets forth, in pertinent part, “Every court shall have the power to do all of the following: ... (8) To amend and control its process and orders so as to make them conform to law and justice[.]”

A.    Motion to Set Aside

Defendant moves the Court to set aside the Default against Northpoint requested by Plaintiff and entered by the Clerk on March 13, 2024, maintaining that Northpoint is an unregistered fictitious business name of CFGC, thus it is not a separate legal entity that may be subject to a default.

To support its position, CFGC provides its operations coordinator, Nora Labowitz’s declaration, attesting, “Northpoint School is not, and has never been, a legal entity separate from the Child and Family Guidance Center.” (Labowitz Decl., ¶ 4.)

Furthermore, CFGC presents an authenticated copy of the School Accountability Report Card published by it, pursuant to Education Code section 35256, subdivision (c), for the 2021-2022 School Year. (Labowitz Decl., Ex. “4.”) The School Accountability Report Card displays that “Northpoint School is a division of the Child and Family Guidance Center.” (Id., at p. 3.)

The Court notes that established precedents are instructive on the issue at bar. “The designation of ‘DBA’ or ‘doing business as’ simply indicates [defendant corporation] operates under a fictitious business name. [Citations.] Use of a fictitious business name does not create a separate legal entity.” (Pinkerton's, Inc. v. Superior Court (1996) 49 Cal.App.4th 1342, 1348 (Pinkerton).) “[W]hile a corporation may be sued by its fictitious business name, once its true name is discovered, all further proceedings should be in the corporate name.” (Id. at p. 1349.) Separate appearances are not required, and an action cannot be maintained against the fictitious business name if the legal entity is entitled to dismissal. (Ibid.)

Based on the above records and in alignment with the ruling in Pinkerton, the Court determines that CFGC has established that Northpoint, as an unregistered fictitious business name of CFGC, is not a separate legal entity.

The Court further considers Plaintiff’s contention that there is a discrepancy in the description of CFGC on its website and the records of the California Department of Education. Plaintiff notes that on CFGC’s website states it is a “501(c)(3) non-profit mental health care organization,” whereas the California Department of Education lists Northpoint School as a “K-12 private school.” (Opp’n., at p. 4.) However, the Court finds that this discrepancy does not contradict CFGC’s position, especially given that the School Accountability Report Card explicitly uses the fictitious business name, Northpoint School, for reporting purposes in compliance with the Education Code, consistent with the filing at the Department of Education.

Accordingly, the Court concludes that Defendant has not overcome the evidentiary showing established by CFGC that Northpoint is its fictitious business name, not a separate legal entity.

Therefore, the Court finds a valid basis exists, under either the discretionary relief authority of Code of Civil Procedure section 437 or its inherent power as outlined under Code of Civil Procedure section 128, to set aside the Default entered against Northpoint on March 13, 2024.

CONCLUSION

The Court SETS ASIDE and VACATES the Default entered against Northpoint School on March 13, 2024.

The Court GRANTS Defendant Child and Family Guidance Center’s request to file an amended Answer expressly made on behalf of “Child and Family Guidance Center dba Northpoint School.”

Defendant Child and Family Guidance Center is ordered to file and serve the amended Answer within 10 days.

Moving party is ordered to give notice.