Judge: Katherine Chilton, Case: 22STLC06196, Date: 2023-01-10 Tentative Ruling

Case Number: 22STLC06196     Hearing Date: January 10, 2023    Dept: 25

PROCEEDINGS:      MOTION TO SET ASIDE/VACATE DEFAULT

MOVING PARTY:   Defendant Parfums Raffy

RESP. PARTY:         None

MOTION TO SET ASIDE/VACATE DEFAULT

(CCP § 473(b))

TENTATIVE RULING:

Defendant Parfums Raffy’s Motion to Set Aside/Vacate Default is GRANTED.  Default entered against Defendant on November 18, 2022, is hereby VACATED.

SERVICE: 

[   ] Proof of Service Timely Filed (CRC, rule 3.1300)                 OK

[   ] Correct Address (CCP §§ 1013, 1013a)                                                 OK

[   ] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b))                     OK

OPPOSITION:          None filed as of January 9, 2023.               [   ] Late                      [X] None

REPLY:                     None filed as of January 9, 2023.               [   ] Late                      [X] None

ANALYSIS:

I.                Background

On September 26, 2022, Plaintiff Julianna Garcia (“Plaintiff”), in propria persona, filed an action against Defendant Parfums Raffy (business form unknown) (“Defendant”) arising out of an alleged violation of the Americans with Disabilities and Unruh Civil Rights Acts.

On October 11, 2022, Plaintiff filed Proof of Service by Substituted Service indicating that Defendant had been served on October 4 and 5, 2022.  (10-11-22 Proof of Service.)

On November 10, 2022, the Court rejected Plaintiff’s request to enter default against Defendant because the request was premature and could not be filed until November 15, 2022.  (11-10-22 Notice of Rejection.)

On November 18, 2022, pursuant to Plaintiff’s request, the Court entered default against Defendant.  (11-18-22 Request for Entry of Default/Judgment.)  On November 22, 2022, the Court dismissed Does 1 to 50, without prejudice, based on Plaintiff’s request.  (11-22-22 Request for Dismissal.)  On November 22, 2022, Plaintiff filed a request for default judgment with supporting documents.

            On November 23, 2022, Defendant filed the instant Motion to Set Aside/Vacate Default (“Motion”).

            No opposition has been filed.

II.              Legal Standard

Pursuant to Code of Civil Procedure §473(b), both discretionary and mandatory relief is available to parties from “judgment, dismissal, order, or other proceeding taken against him or her.”  Discretionary relief is available under the statute as “the court may, upon any terms as may be just, relieve a party or his or her legal representative from judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.  (Code of Civ. Proc. § 473(b).)  Alternatively, mandatory relief is available when “accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect.”  (Ibid.)  Under this statute, an application for discretionary or mandatory relief must be made no more than six months after entry of the judgment, dismissal, order, or other proceeding from which relief is sought.  (Code Civ. Proc., § 473(b); English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 143.)

“‘[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…[Citation.]” (Rappleyea v. Campbell¿(1994) 8 Cal. 4th 975, 981-82.)

Furthermore, “[a]pplication for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein.”  (Code of Civil Procedure § 473(b).)

III.            Discussion

On November 18, 2022, pursuant to Plaintiff’s request, the Court entered default against Defendant.  (11-18-22 Request for Entry of Default/Judgment.)

            On November 23, 2022, Defendant filed the instant Motion to Set Aside/Vacate Default.  Defendant seeks to set aside default based on its counsel’s inadvertence.  (Sahelian Decl. ¶ 3.)  Counsel explains that he had intended to file a demurrer and was attempting to meet and confer with Plaintiff.  (Ibid. at ¶ 4.)  He could not reach Plaintiff and thus, he intended to file a Declaration of Demurring party to request additional time.  (Ibid. at ¶ 5.)  However, Plaintiff’s premature request for entry of default caused him to believe that he could no longer file a responsive pleading and he began preparing a motion to set aside default.  (Ibid. at ¶¶ 3, 6.)  During this time, Plaintiff filed a second Request for Entry of Default, which was timely, and the Court entered default against Defendant.  (Ibid. at ¶ 3; 11-18-22 Request for Entry of Default/Judgment.)  Counsel has also submitted a proposed preliminary draft of the demurrer he intends to file in case default is vacated.  (Ex. A.)

            Counsel adds that the Court should grant the instant Motion because it will further California's policy of allowing disputes to be adjudicated on their merits and will not unfairly prejudice Plaintiff.  (Mot. pp. 5-7.)

The Court finds that Defendant’s motion is timely and accompanied by Defendant’s counsel’s declaration of fault.  For this reason, Defendant’s Motion is GRANTED, and default entered against Defendant on November 18, 2022, is hereby VACATED.

IV.           Conclusion & Order

For the foregoing reasons,

Defendant Parfums Raffy’s Motion to Set Aside/Vacate Default is GRANTED.  Default entered against Defendant on November 18, 2022, is hereby VACATED.  Defendant is ordered to file its responsive pleading within 10 days.

Moving party is to give notice.