Judge: Frank M. Tavelman, Case: 24NNCV04668, Date: 2025-04-11 Tentative Ruling

Case Number: 24NNCV04668    Hearing Date: April 11, 2025    Dept: A

MOTION TO SET ASIDE DEFAULT

NOTICE:

The Court is not requesting oral argument on this matter.  The Court is guided by California Rules of Court, Rule 3.1308(a)(1) whereby notice of intent to appear is requested.  Unless the Court directs argument in the Tentative Ruling, no argument is required and any party seeking argument should notify all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear and argue.  The tentative ruling will become the ruling of the court if no argument is received.  

Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412.

ALLEGATIONS: 

On September 30, 2024, Anthony Bouyer (Plaintiff) filed his Complaint against Chuen Lau and Hing Ling Chu (Defendants). Plaintiff alleges that Defendants own the property located at 9510 Garvey Ave, South El Monte, CA 91733 at which they operate Bao Kee Cafe. (Compl. ¶ 5.) Plaintiff generally alleges that he visited Bao Kee Cafe and experienced architectural barriers in the parking lot which violate the Americans with Disabilities Act (ADA). (Compl. ¶¶ 23-34.) It is uncertain what date Plaintiff allegedly visited Defendant’s business, as each allegation speaking to a date merely states it as “Date of Visit” (See Compl. ¶¶ 23-26, 29.)

On November 19, 2024, Plaintiff’s Complaint was served upon each Defendant via substitute service at 566 Willow Springs Ln. Glendora. CA 91741-2974. (See POS filed November 11, 2024.) A copy of the documents to be served were left with co-occupant Gloria Chu and mailed to the Glendora address thereafter.

On January 7, 2025, Plaintiff’s request for default was entered. On January 15, 2025, Defendants filed a motion to set aside the default with an April 11, 2025 hearing. Defendants request relief based on their excusable neglect pursuant to C.C.P. § 473(b).

On February 18, 2025, the matter came on for a Case Management Conference. Defendants, in pro per, appeared at the hearing and requested the Court set aside the default. Plaintiff’s counsel refused to stipulate to vacate the default. The Court briefly reviewed the motion to vacate at this time and noticed that there was no proposed responsive pleading attached as required by C.C.P. § 473(b).

On March 7, 2025, Defendants filed a proposed Demurrer to the Complaint. Plaintiff maintains his opposition to vacatur, arguing that Defendant’s neglect of this action was not excusable and thus not grounds for relief under C.C.P. § 473(b).

ANALYSIS: 

I.                    LEGAL STANDARD 

C.C.P. § 473(b) has both a discretionary relief provision and a mandatory relief provision. (Jackson v. Kaiser Foundation Hospitals, Inc. (2019) 32 Cal.App.5th 166, 173.)  The discretionary provision of Code of Civil Procedure § 473(b), in pertinent part, reads as follows:

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…

The general underlying purpose of C.C.P. § 473(b) is to promote the determination of actions on their merits. (Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830.) Under this statute, an application for relief must be made no more than six months after entry of the judgment, dismissal, order, or other proceeding from which relief is sought and must be accompanied by an affidavit of fault attesting to the mistake, inadvertence, surprise or neglect of the moving party or its attorney. (C.C.P. § 473(b); English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 143.

II.                 MERITS

In a motion to set aside a default judgment or order under Section 473(b), the initial burden is on the moving party to prove excusable neglect by a “preponderance of the evidence.” (Kendall v. Baker (1988) 197 Cal.App.3d 619, 624.)

Here, Defendants do not deny having received notice of the lawsuit. Instead, Defendants state that they, “lacked knowledge of procedural requirements” to respond to the Complaint. (Mot. p. 2.) Defendants state that they did take action regarding the lawsuit by emailing Plaintiff’s counsel on November 12, 2024. (Id.; Supp. Filing at pgs. 5-6.) It appears from this email that Defendants believe Plaintiff inadvertently filed his Complaint, as they are certain that Plaintiff never visited their business or its parking lot. (Id.) Defendant’s email further requested that Plaintiff dismiss the case with prejudice. Plaintiff’s counsel refused. (Id.)

In opposing the motion to vacate, Plaintiff argues that Defendants have produced no evidence in satisfaction of their burden to demonstrate excusable neglect. (See Kendall supra, 197 Cal.App.3d at 624.) The Court finds this argument unpersuasive. Defendants’ attachment of their email to Plaintiff’s counsel is ample evidence of Defendant’s neglect in answering the Complaint. It appears that Defendants believed they could reach an informal resolution of the matter without having to formally respond. The question is thus whether Defendant’s failure to file an Answer was excusable in light of Plaintiff’s counsel rebuffing informal resolution.

The test for whether neglect was “excusable” is whether a reasonably prudent person under the same or similar circumstances might have made the same error. (Luri v. Greenwald (2003) 107 Cal.App.4th 1119, 1128.) Examples of excusable neglect include where a litigant suffers a serious illness that prevents their filing a timely response or a litigants inability to understand that they have been served with process due to confusion. (See Kesselman v. Kesselman (1963) 212 Cal.App.2d 196, 207; In re Marriage of Kerry (1984) 158 Cal.App.3d 456, 466.) Examples of inexcusable relief include where a litigant unreasonably believes they have not been properly served, the pressure of business/family matters, or a litigant’s reliance on a friend/relative to take of the matter with little to no oversight. (See Khourie, Crew & Jaeger v. Sabek, Inc. (1990) 220 Cal.App.3d 1009, 1015; Ambrose v. Michelin North America, Inc. (2005) 134 Cal.App.4th 1350, 1354; Davis v. Thayer (1980) 113 Cal.App.3d 892, 909.)

Defendants’ explanation for why they neglected to file a formal response is that they lacked the knowledge of how to do so. The Court finds this justification is in some way undermined by Defendants’ email to Plaintiffs’ counsel. The email shows a knowledge of ADA compliance which is incongruent with the claim that Defendants did not know how to respond to the Complaint. At the same time, the Court notes that the email sent to Plaintiff’s counsel was written by Gloria Chu, not Defendants. This suggests that Defendants sought external assistance in replying to Plaintiff. While the efficacy of the assistance Defendants sought was questionable, it does not follow that their failure to file a timely responsive pleading was inexcusable.

In the Court’s view, it is not unreasonable for a person with no formal experience with litigation to believe that an email seeking informal resolution is a sufficient response to the receipt of a lawsuit. While Defendants’ belief was ultimately unfounded, their failure to respond was not inexcusable such that the default should remain.  “[W]hen relief under section 473 is available, there is a strong public policy in favor of granting relief and allowing the requesting party his or her day in court.” (Cruz v. Fagor America, Inc. (2006) 146 Cal.App.4th 488, 495.) In other words, while C.C.P. § 473(b) requires a showing of excusable neglect, the bar is set low for relief to be granted.

Accordingly, the motion to set aside is GRANTED. Defendants are to file their proposed demurrer to the Complaint within 10 days.  Defendants are advised that the attachment of the demurrer to their motion is insufficient for the demurrer to be property processed and the demurrer must be filed with the Court separately.

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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 

Chuen Lau and Hing Ling Chu’s Motion to Set Aside Default came on regularly for hearing on April 11, 2025, 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 TO SET ASIDE IS GRANTED.

DEFENDANTS ARE TO FILE THEIR PROPOSED DEMURRER TO THE COMPLAINT WITHIN 10 DAYS.

PLAINTIFF TO GIVE NOTICE.

IT IS SO ORDERED.