Judge: Joseph Lipner, Case: 24STCV04323, Date: 2024-04-22 Tentative Ruling

Case Number: 24STCV04323    Hearing Date: April 25, 2024    Dept: 72

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES

DEPARTMENT 72

TENTATIVE RULING

Defendant Tracfone Wireless Inc. (“Defendant”) moves to set aside the default entered against it on March 27, 2024.

The Court GRANTS Defendant’s motion and vacates the default.  Defendant shall respond to the First Amended Complaint within 10 days.

Background

This case concerns the alleged theft of the debit card information, money, and other private information of Plaintiff Jaston Archie’s (“Plaintiff”) when he called Defendant Tracfone to activate a cellular phone.

Plaintiff filed this action on February 21, 2024.

Default was entered against Defendant on March 27, 2024.

Legal Standard

Permissive Relief Under Code Civ. Proc., § 473 (b)

The trial court has discretion to “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.” (Code Civ. Proc., § 473 (b).)  Such an application shall be accompanied by a copy of the answer or other pleading proposed to be filed in replacement of the pleading being set aside and shall be made within six months after the judgment, dismissal, order, or other pleading for which dismissal is being sought. (Ibid.)

Mandatory Relief under Code Civ. Proc., § 473 (b)

Where a defendant in default moves for relief from default, judgment, or other dismissal against them entered as the result of her attorney’s mistake and “no more than six months” have passed since the entry of judgment, the court shall grant such relief as is requested, provided the motion satisfies all procedural requirements and the court does not find that the entry of default was caused by something other than the attorney's mistake, inadvertence, surprise, or neglect. (Code Civ. Proc., § 473 (b).)

Discussion

            Defendant retained Yu Mohandesi LLP in connection with this action. Counsel for Defendant believes that this action is subject to an arbitration agreement and prepared an arbitration motion. However, due to attorney error, the deadline to respond to the complaint was not entered on counsel’s calendar, and the arbitration motion was not timely filed. (Robinson Decl. ¶¶ 5, 7.)

            Where an attorney affidavit of fault is filed, there is no requirement that the neglect be excusable. (Code Civ. Proc., § 473 (b).) Here, Kristel Robinson has filed an affidavit of fault. (Robinson Decl. ¶¶ 5, 7.)

            Plaintiff argues that Defendant should not be relieved from default because his claims are not arbitrable. That may be the case, but even an incorrect motion to compel arbitration can take the place of an answer for the purpose of avoiding default. (Code Civ. Proc., § 1281.7.) The question at issue here is not whether arbitration is appropriate, but whether Defendant should be relieved from default. The timely filing of the arbitration motion would, as a matter of law, have prevented default.

            Plaintiff argues that Defendant defaulted for the improper purpose of increasing Plaintiff’s litigation costs but provides no evidence of this claim.

            The Court therefore grants Defendant’s motion to set aside default.