Judge: Joseph Lipner, Case: 24STCV04323, Date: 2025-01-09 Tentative Ruling

Case Number: 24STCV04323    Hearing Date: January 9, 2025    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 November 19, 2024.

The Court GRANTS Defendant’s motion and vacates the default. The Court ORDERS that Defendant’s previously-filed Answer be treated as validly filed.

The Court assesses a penalty of $1,000.00 against Defendant’s law firm under Code of Civil Procedure, section 473, subdivision (c)(1). Defendant’s law firm shall pay this amount to Plaintiff within 10 days.

Plaintiff is entitled to costs. Plaintiff expended $21.37 in filing fees seeking entry of default and estimates that the cost of filing his opposition will be around $27.00. The Court therefore awards an additional $48.37 in costs.  Defendant’s law firm shall pay this amount to Plaintiff within 10 days. 

Background

This case concerns Defendant’s alleged theft of Plaintiff’s debit card information, money, and other private information when Plaintiff called Defendant, a cellular service provider, to activate a cellular phone on December 21, 2023.

Defendant then allegedly used the information that it obtained from Plaintiff to fraudulently withdraw funds from Plaintiff’s bank account through a hacking technique called “skimming.”

Plaintiff filed this action on February 21, 2024. The operative complaint is now the First Amended Complaint (“FAC”), which raises claims for (1) negligence; (2) violations of California Consumer Privacy Act (Civ. Code, § 1798.100, et seq.); and (3) unjust enrichment.

Default was entered against Defendant on March 27, 2024.

Defendant moved to compel arbitration on April 2, 2024.

On April 25, 2024, the Court relieved Defendant from default and ordered that Defendant’s motion to compel arbitration would serve as its response to the Complaint. The arbitration motion was then briefed by both parties.

On June 6, 2024, the Court denied Defendant’s motion to compel arbitration.

Although Defendant continued to participate in this case over the months that followed, including opposing an ex parte application brought by Plaintiff, Defendant did not file an answer for over five months.

On November 19, 2024, default was entered against Defendant, for a second time, pursuant to Plaintiff’s request.

On November 25, 2024, Defendant filed an answer.

On November 27, 2024, Defendant filed this motion to set aside default. Plaintiff filed an opposition and Defendant filed a reply.

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

Relief from Default

            Defendant has provided an attorney affidavit of fault. Defendant waived notice at the hearing when the Court denied the arbitration motion. Kristel Robinson, defense counsel, declares that, as an inadvertent result, the law firm did not receive a copy of the order, which would ordinarily trigger their calendaring associated with the order. (Robinson Decl. ¶ 6.) As a result, no deadline to file an answer was calendared. (Robinson Decl. ¶ 6.) Robinson declared that she had completed a final draft of the answer by June 11, 2024, but did not file it when it was finalized. (Robinson Decl. ¶ 6.)

            Plaintiff argues that Defendant defaulted for the improper purpose of increasing Plaintiff’s litigation costs. In support of this claim, Plaintiff argues that Defendant stated that it intended to appeal the order denying arbitration following the hearing. However, this statement does not provide clear evidence that Defendant intended to default in order to increase Plaintiff’s litigation costs.

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

Attorney’s Fees and Costs

“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.” (Code Civ. Proc., § 473, subd. (b).)

Plaintiff requests an award of attorney’s fees and costs.

Self-represented parties cannot generally obtain an award of attorney’s fees to compensate them for their time spent on the litigation. (Atherton v. Board of Supervisors (1986) 176 Cal.App.3d 433, 436.)

Plaintiff is entitled to recover his costs.

Plaintiff expended $21.37 in filing fees seeking entry of default and estimates that the cost of filing his opposition will be around $27.00. The Court deems these amounts reasonable. 

“Whenever the court grants relief from a default, default judgment, or dismissal based on any of the provisions of this section, the court may do any of the following:

(A) Impose a penalty of no greater than one thousand dollars ($1,000) upon an offending attorney or party.

(B) Direct that an offending attorney pay an amount no greater than one thousand dollars ($1,000) to the State Bar Client Security Fund.

(C) Grant other relief as is appropriate.”

(Code Civ. Proc., § 473, subd. (c)(1).)

            Plaintiff requests a $1,000.00 penalty under section 473(c)(1).

            Here, the second default appears to have resulted from the faulty procedures of Defendant’s law firm. The Court therefore determines that a penalty is appropriate and assesses a $1,000.00 penalty against Defendant’s law firm.