Judge: Holly J. Fujie, Case: 23STCV24430, Date: 2024-10-31 Tentative Ruling

Case Number: 23STCV24430    Hearing Date: October 31, 2024    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

MOVING PARTY: Defendant PACIFICO EXPRESS LLC (“Defendant”)

RESPONDING PARTY: Plaintiff CYSA EXPRESS INC. (“Plaintiff”)

            The Court has considered the moving and opposition papers.  No reply has been filed.  Any reply was required to have been filed and served at least five court days prior to the hearing.  (Code Civ. Proc., § 1005, subd. (b).)

BACKGROUND

             On October 6, 2023, Plaintiff filed a complaint (“Complaint”) against Defendant asserting the following causes of action: (1) breach of contract; (2) quantum meruit; (3) open book account; (4) account stated; and (5) unjust enrichment.

            Defendant has not filed a responsive pleading to the Complaint.  On December 11, 2023, default was entered against Defendant.  On February 2, 2024, Plaintiff filed a Request for Entry of Judgment in view of Defendant’s default.  Default judgment was entered against Defendant on February 9, 2024.

            On July 24, 2024, Defendant filed the instant Motion to Vacate Default and Default Judgment (the “Motion”).  Plaintiff filed an opposition on October 18, 2024.  No reply has been filed.

DISCUSSION

            The court is empowered to relieve a party or their legal representative from a judgment, dismissal, order, or other proceeding taken against them through their mistake, inadvertence, surprise or excusable neglect.  (CCP § 473, subd. (b).)  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.  (Id.)  The law favors a trial on the merits and courts therefore liberally construe section 473.  (Bonzer v. City of Huntington Park (1993) 20 Cal.App.4th 1474, 1477.)  Doubts in applying section 473 are

resolved in favor of the party seeking relief from default.  (Id. at 1478.)

            In support of the Motion, Defendant’s CEO, Juan Mosquera, declares that he mistakenly believed that Karla Waymire, the attorney representing him in another case (in which Plaintiff is a defendant), would also handle this current case.  (Declaration of Juan Mosquera, ¶¶ 4-5.) Mosquera further explains that when he learned that Waymire would not be handling this matter, he began searching for legal counsel.  However, he encountered difficulties in finding an attorney due to a language barrier.  (Id., ¶¶ 7-8.)  Mosquera states that as of June 3, 2024, he has retained Osuna & Dotson Law Firm as counsel.  (Id., ¶ 9.)  

            The Court finds that Defendant has adequately shown that its failure to respond to the Complaint was the result of Mosquera’s mistake, inadvertence or excusable neglect.  In addition, the Motion is timely filed within six months of the entry of default, and is accompanied by a copy of the answer proposed to be filed. 

            Plaintiff asserts in its opposition that it incurred fees and costs in obtaining the default judgment in the amount of $864, and has now incurred an additional $600 in fees and costs in opposing the Motion (1.5 hrs. at $400 per hour) and anticipates another $200.00 in fees to appear at the hearing on the Motion (.5 hr. at $400/hr.), for a total of $1,664.00.  (Declaration of Gloria Medel, ¶¶ 11-12.)  While under CCP § 473(b), “[t]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”, the provision does not apply when the affidavit of fault is by a party rather than by the attorney.  This provision is intended to relieve the innocent client of the burden of the attorney’s fault and to impose the burden on the erring attorney (Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 839.)  The Court also declines to impose a discretionary penalty under CCP 473(c) in view of Mosquera’s mistaken belief and/or innocent reliance that an attorney was handling the case.

RULING

The Court, therefore, GRANTS the Motion and ORDERS that the default and default judgment entered against Defendant be vacated.  Defendant is ORDERED to file a responsive pleading to the Complaint within twenty days of this order.  The Court will hold a case management conference on November 14, 2024 at 8:30 a.m. in this department. 

Moving party is ordered to give notice of this ruling.           

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Dated this 31st day of October 2024