Judge: Frank M. Tavelman, Case: 22BBCV00483, Date: 2022-12-23 Tentative Ruling

Case Number: 22BBCV00483    Hearing Date: December 23, 2022    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

TENTATIVE RULING (Revised)

MOTION TO SET ASIDE DEFAULT

Los Angeles Superior Court Case # 22BBCV00483

ALLEGATIONS:

On July 6, 2022, Plaintiff Anthony Bouyer brought this action against Defendants Mike’s Liquor, Inc., Cassy K. Chun, and Sandy Soo Chun (collectively “Defendants”), alleging one cause of action for violations of the Unruh Civil Rights Act, California Civil Rights Code Section 51 et seq.

Plaintiff is an individual with a mobile disability who relies on a wheelchair. Plaintiff’s complaint alleges that on June 28, 2022, he visited Mike’s Liquor, which is located on commercial property owned by Cassy Chun and Sandy Soo Chun. According to Plaintiff, the Defendants’ property lacked several legally-required accommodations for disabled people—including handicap parking spaces and barrier-free architectural facilities.

HISTORY:

Plaintiff is a high-frequency litigant. During the 12 months prior to the filing of this Complaint, Plaintiff has filed over 10 complaints alleging a construction related accessibility claim.

On July 6, 2022, Plaintiff filed his complaint. On October 14, 2022, Plaintiff filed requests for entry of default/judgment. Default was entered for each Defendant that same day. On November 23, 2022—after default was entered—Defendants filed an answer.

RELIEF REQUESTED:

Defendants move for relief from default. In effect, this is a motion to set aside/vacate default.

ANALYSIS:

I.          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… 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.” (Code Civ. Proc. § 473(b).)

Notwithstanding the above, the Court is unable to locate proof of service of this motion on the Plaintiff.   Proof of notice is mandatory to properly effect due process.   However, the Court will continue and discuss the merits of the request.

II.        MERITS

Here, Defendants’ motion is timely. It was filed on November 30, 2022, which is within six months of when default was entered against each of the Defendants. Furthermore, judgment has yet to be entered by the Court. (See Code Civ. Proc. § 473(b).)

Defendants were served with Plaintiff’s complaint on August 5, 2022, and Defendants’ answer was due on September 29, 2022. According to Defendants’ counsel, on September 30, 2022, counsel for Plaintiff stated that she was unwilling to grant any extensions beyond the 15 days allowed by Rule of Court 3.110. (Chun Decl. ¶ 7.) Defendants’ Counsel states that she responded by instructing her firm staff to get an answer on file for all Defendants by the next business day, October 3, 2022, but that she regretfully failed to confirm that Defendants’ answer had actually been filed. (Id. ¶¶ 8- 9.) Defendant’s Counsel further states that on November 23, 2022, she went on to the Court’s website to confirm the date and time of the case management conference, at which point she realized Defendants’ answer had not been filed and default had been entered. (Id. ¶¶ 10-11.) An answer for Defendants was filed that same day and this motion for relief from default was filed one week later.

Defendants have attached an affidavit attesting to reasonable mistake on the part of their attorney, and this motion for relief from default was timely filed. Accordingly, the Court is obligated to grant the motion. (See Code Civ. Proc. § 473(b).)

III.       CONCLUSION

Defendants’ motion for relief from default is CONTINUED until January 12, 2023 at 9am for moving party to provide proof of service.

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records.

ORDER

Mike’s Liquor, Inc., Sandy Soo Chun, and Cassy K. Chun Motion came on regularly for hearing on December 23, 2022, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:

THE MOTION IS CONTINUE TO JANUARY 12, 2023, AT 9AM FOR DEFENDANTS TO PROVIDE PROOF OF SERVICE.

IT IS SO ORDERED.

DATE:    12/23/2022                                      _______________________________

                                                                        F.M. TAVELMAN, Judge

                                                                        Superior Court of California

County of Los Angeles