Judge: Gregory Keosian, Case: 22STCV03993, Date: 2022-12-15 Tentative Ruling

Case Number: 22STCV03993    Hearing Date: December 15, 2022    Dept: 61

Defendant Gomez Enterprises, LLC’s Motion to Set Aside Default is GRANTED.

I.                   MOTION FOR RELIEF FROM DEFAULT

Code of Civil Procedure section 473, subdivision (b) states:

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 . . . . 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 . . . 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.

Defendant Gomez Enterprises (Defendant) seeks relief from the default entered against it on August 31, 2022, on the grounds of excusable neglect. It presents the declaration of its principal owner, Khambrell Gomez, who states that when he was served with the summons and complaint, instead of hiring an attorney, he reached out to an independent legal services company run by one Rachel Gardner, a paralegal who offered to prepare the necessary papers for him to respond to this lawsuit, and erroneously informed him that Defendant, a corporation, could represent itself in court without legal counsel. (Gomez Decl. ¶¶ 4–6.) Gardner told Gomez that she worked with attorneys “who supervised her work.” (Gomez Decl. ¶ 5.)  It was on Gardner’s advice that Defendant filed a meritless motion to quash instead of an answer, and it was Gardner who supplied Gomez with erroneous court dates that caused Gomez to miss various hearings up to September 2, 2022. (Gomez Decl. ¶¶ 8–14.) Defendant retained counsel in September 2022, and filed the present motion on October 21, 2022. (Gomez Decl. ¶ 15.)

A party who seeks relief under section 473 on the basis of mistake or inadvertence of counsel must demonstrate that such mistake, inadvertence, or general neglect was excusable because the negligence of the attorney is imputed to his client and may not be offered by the latter as a basis for relief. In determining whether the attorney's mistake or inadvertence was excusable, “the court inquires whether ‘a reasonably prudent person under the same or similar circumstances' might have made the same error.

(Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 258, internal citations and quotation marks omitted.)

Defendant has shown excusable neglect in this case, and Defendant’s conduct in this matter does not evidence evasion or bad faith. The evidence shows that Defendant, in the erroneous belief that it could represent itself as a corporate entity without the aid of counsel, reached out to a legal services company that held itself out as providing guidance through the litigation process, under the supervision of licensed attorneys, but which did not inform Defendant of the necessity of actual legal representation, or of the proper dates of court hearings, which might have corrected Defendant’s error sooner. Indeed, upon missing the hearing at which the court denied Defendant’s motion to quash, the company did not inform Defendant of the court’s admonition to obtain representation, but only that the motion had been denied for the failure to appear. (Gomez Decl. ¶ 11.) Upon learning of its error, however, Defendant promptly sought out counsel and filed this motion, which includes a proposed answer. This is not a case, as Plaintiff argues, of a litigant who “ignores the responsibility to present a defense.” (Opposition at p. 2.) It is rather an instance in which a third party affirmatively misled the character of these proceedings and its capacity to assist with them, to Defendant. In this context, Defendant’s reliance on the third party for assistance, up until the date of default, was reasonable. (See Cruz v. Fagor America, Inc. (2007) 146 Cal.App.4th 488, 508 [reasonable reliance on third party justifies equitable relief from default].)

The motion is therefore GRANTED.