Judge: Deirdre Hill, Case: 21STCV20121, Date: 2023-05-02 Tentative Ruling

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Case Number: 21STCV20121    Hearing Date: May 2, 2023    Dept: M

Superior Court of California

County of Los Angeles

Southwest District

Torrance Dept. M

 

LEE CYNTHIA WYNDER, et al.,

 

 

 

Plaintiffs,

 

Case No.:

 

 

21STCV20121

 

vs.

 

 

[Tentative] RULING

 

 

GRACE MEMORIAL CHAPEL AND FUNERAL HOME, INC., et al.,

 

 

 

Defendants.

 

 

 

 

 

 

 

Hearing Date:                         May 2, 2023

 

Moving Parties:                      Defendant Grace Memorial Chapel and Funeral Home, Inc.

Responding Party:                  Plaintiffs Lee Cynthia Wynder, et al.,

Motion to Set Aside and Vacate the Default and Default Judgment

 

            The court considered the moving, opposition, and reply papers.

RULING

            The motion is GRANTED.  The default entered on November 14, 2022 is set aside and vacated.  Defendant Grace Memorial is ordered to file and serve a responsive pleading forthwith.

BACKGROUND

On May 27, 2021, plaintiffs Lee Cynthia Wynder, Vincent Wynder, and Latonya Renay Wynder filed a complaint against Grace Memorial Chapel and Funeral Home, Inc., New Gardens Memorial Chapel & Funeral Home, Inc., and Vincent B. Wilson for (1) negligence, (2) IIED, and (3) breach of contract.

On November 14, 2022, a default was entered against Grace Memorial Chapel and Funeral Home.

LEGAL AUTHORITY

“The court may, upon 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. . . . Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect.  The court shall, whenever relief is granted based on an attorney's affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties.”  CCP § 473(b).

DISCUSSION

            Under CCP §473(b), defendant Grace Memorial Chapel and Funeral Home, Inc. requests that the court vacate the default entered against it on November 14, 2022 based on attorney mistake, inadvertence, surprise, or neglect.

            Attorney Atyria S. Clark, Esq. states in her declaration that she has in the last few years served as counsel for Grace Memorial.  Shortly after April 15, 2022, Clark retrieved from her private mail box located in Santa Monica a copy of the complaint.  She states that at that time, Clark was counsel to Grace Memorial in an unrelated matter but was not the registered agent and she considered the service invalid and not requiring a response.  “When I received the Complaint, it was my impression that service was not proper.”  Clark further states that as of June 16, 2022, Grace Memorial had appointed Clark as the registered agent for service and has remained the registered agent for service, although as of September 19, 2022 at a different address in Culver City.  Attorney Clark states, “I forget [sic] that in addition to my services as counsel on a matter-by-matter basis that my role had changed.  That my error was forgetting this expanded role, which lead to the failure to have a timely answer on file when a second service, accomplished on September 9, 2022.  Therefore, I still acted as if service was invalid.”  Counsel further states, “[T]he error was mine . . . .”  Atyria S. Clark, Esq. decl.

            In opposition, plaintiffs contend that defendant was properly served with the summons and complaint and the request for entry of default and that plaintiffs’ counsel was not obligated to contact defendant’s registered agent before requesting default.  Plaintiffs also assert that attorney Clark was not acting as attorney for defendant when she made the “error” and thus mandatory relief is not warranted.  As for discretionary relief, plaintiffs argue that Clark’s mistake was inexcusable.

            In reply, defendant argues that at all relevant times, Clark was a licensed attorney who was also the registered agent for service. 

            The court finds that the default was the result of an attorney and/or party’s registered agent’s mistake, inadvertence, surprise, or neglect.  Relief is warranted. 

Thus, the motion is GRANTED.

Moving defendant is ordered to give notice of the ruling.