Judge: Katherine Chilton, Case: 22STLC06725, Date: 2023-02-14 Tentative Ruling

Case Number: 22STLC06725    Hearing Date: February 14, 2023    Dept: 25

PROCEEDINGS:      MOTION TO SET ASIDE/VACATE DEFAULT

MOVING PARTY:   (1) Defendant Joshua Liang

                                    (2) Defendants OHB Restaurant, LLC and Ono Hawaiian BBQ, Inc.

RESP. PARTY:         None

MOTION TO SET ASIDE/VACATE DEFAULT

(CCP § 473(b))

TENTATIVE RULING:

Defendant Joshua Liang’s Motion to Set Aside Entry of Default is GRANTED.  Default entered against Defendant on December 9, 2022, is hereby VACATED and the Answer filed on December 16, 2022, is admitted by the Court.

Defendants OHB Restaurant, LLC and Ono Hawaiian BBQ, Inc.’s Motion to Set Aside Entry of Default is GRANTED.  Default entered against Defendants on December 9, 2022, is hereby VACATED and the Answer filed on December 16, 2022, is admitted by the Court.

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 February 8, 2023.                       [   ] Late                      [X] None

REPLY:                     None filed as of February 8, 2023.                       [   ] Late                      [X] None

ANALYSIS:

I.                Background

On October 12, 2022, Plaintiff Rickey Green (“Plaintiff”) filed an action against Defendants CLPF Gateway Towne Center LP (“CLPF”), OHB Restaurant, LLC (“OHB”), Ono Hawaiian BBQ, Inc. (“Ono”), and Joshua Liang (“Liang”), (collectively “Defendants”), arising out of an alleged violation of the Unruh Civil Rights Acts.

On December 9, 2022, pursuant to Plaintiff’s request, default was entered against Defendants OHB, Ono, and Liang.  (12-9-22 Request for Entry of Default.)

Defendant CLPF filed an Answer on December 9, 2022.  On December 14, 2022, Defendant CLPF filed a Notice of Related Case.

On December 16, 2022, Defendants OHB, Ono, and Liang filed a joint Answer, which should not have been accepted by the Court given that default was entered against Defendants on December 9, 2022.

On December 22, 2022, the instant motions were filed:

1)     Motion to Set Aside Entry of Default, filed by Defendant Liang (“Motion re: Liang”);

2)     Motion to Set Aside Entry of Default, filed by Defendants OHB and Ono (“Motion re: OHB and Ono”).

            No opposition has been filed to either Motion.  On February 7, 2023, Defendants OHB, Ono, and Liang jointly filed a Notice of Non-Opposition to their Motions.

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

a.      Defendant Liang’s Motion to Set Aside Entry of Default

On December 9, 2022, pursuant to Plaintiff’s request, the Court entered default against Defendant Liang.  (12-9-22 Request for Entry of Default.)

On December 22, 2022, Defendant filed the instant Motion to Set Aside/Vacate Default.  Defendant seeks to set aside default for the following reasons: (1) Defendant was not properly served, (2) responsive pleadings were not filed due to “inadvertence, mistake, or excusable neglect,” (3) “Defendant acted with reasonable diligence to correct the error,” (4) “Defendant has meritorious defenses and must be allowed to present them,” and (5) Code of Civil Procedure § 473 and case law support a policy of determining cases on their merits and granting requests to vacate default.  (Mot. re: Liang, p. 2.)

Defendant argues that Plaintiff will not be prejudiced by the brief delay in litigation.  (Ibid. at p. 8.)

Defendant has submitted declarations of James P. Carter, lead counsel, and Jeremy Lewis, counsel, in support of his Motion.

Counsel Carter states that Defendants’ insurance carrier had emailed him the original complaint on November 4, 2022; however, at the time he was preparing for trial in a different case and “the carrier’s correspondence went unnoticed” by him and his legal secretary.  (Carter Decl. ¶ 3.)  The insurance carrier followed up on December 6, 2022, at which time, Carter requested that an associate communicate with opposing counsel.  (Ibid. at ¶ 4.)

The associate in the case, Counsel Lewis, states that he learned of the case after being informed by lead defense counsel.  (Lewis Decl. ¶ 4.)  He checked the Court docket on December 6, 2022, and found that Plaintiff had not filed proof of service and the Court had set an Order to Show Cause regarding Plaintiff’s failure to file proof of service.  (Ibid.)  Counsel attempted to contact Plaintiff’s counsel to discuss the status of the matter.  (Ibid.)  During a conversation on December 8, 2022, he informed Plaintiff’s counsel that he was representing Defendant Liang and requested copies of proof of service.  (Ibid. at ¶¶ 5-6.)  On December 9, 2022, Plaintiff’s counsel filed Proofs of Service along with a request for entry of default and the Court entered default against Defendant Liang.  (Ibid. at ¶ 8.)  Defense counsel left a voicemail with Plaintiff’s counsel asking to stipulate to set aside the default; however, Plaintiff’s counsel did not respond to his request.  (Ibid. at ¶ 9.)  Defendant filed his Answer, jointly with Defendants OHB and Ono, on December 16, 2022.  (Ibid. at ¶ 10.)

Lewis also argues that Defendant was not properly served because Plaintiff served the Complaint via substitute service on an unnamed individual without diligent efforts to personally serve Defendant Liang.  (Ibid. at ¶¶ 2-3.)

Defendant Liang’s Motion is timely.  The Court finds that the declarations submitted by Defendant’s attorneys, Carter and Lewis, are sufficient to demonstrate that default was entered due to counsels’ mistake.  For this reason, Defendant Liang’s Motion is GRANTED, and default entered against Defendant on December 9, 2022, is hereby VACATED.  Defendant’s Answer, filed on December 16, 2022, is admitted by the Court.

b.     Defendants OHB Restaurant, LLC and Ono Hawaiian BBQ, Inc.’s Motion to Set Aside Entry of Default

On December 9, 2022, pursuant to Plaintiff’s request, the Court entered default against Defendants OHB Restaurant, LLC and Ono Hawaiian BBQ, Inc.  (12-9-22 Request for Entry of Default.)

On December 22, 2022, Defendants filed the instant Motion to Set Aside Entry of Default.  Defendants seek to set aside default for the following reasons: (1) responsive pleadings were not filed due to “inadvertence, mistake, or excusable neglect,” (2) “Defendants acted with reasonable diligence to correct the error,” (4) “Defendants have meritorious defenses and must be allowed to present them,” and (5) Code of Civil Procedure § 473 and case law support a policy of determining cases on their merits and granting requests to vacate default.  (Mot. re: OHB and Ono, p. 2.)

Defendants argues that Plaintiff will not be prejudiced by the brief delay in litigation.  (Ibid. at p. 7.)

Attorneys James P. Carter and Jeremy D. Lewis, who have submitted declarations in support of Defendant Liang’s Motion, also represent Defendants OHB and Ono.  Their declarations have also been submitted in support of Defendants OHB and Ono’s Motions.

As discussed above, the Court finds that the Motion, submitted on December 22, 2022, is timely, and the attorneys’ declarations are sufficient to demonstrate that default was entered due to their mistake in not filing responsive pleadings.  For this reason, Defendants OHB and Ono’s Motion is GRANTED, and default entered against Defendants on December 9, 2022, is hereby VACATED.  Defendants’ Answer, filed on December 16, 2022, is admitted by the Court.

IV.           Conclusion & Order

For the foregoing reasons,

Defendant Joshua Liang’s Motion to Set Aside Entry of Default is GRANTED.  Default entered against Defendant on December 9, 2022, is hereby VACATED and the Answer filed on December 16, 2022, is admitted by the Court.

Defendants OHB Restaurant, LLC and Ono Hawaiian BBQ, Inc.’s Motion to Set Aside Entry of Default is GRANTED.  Default entered against Defendants on December 9, 2022, is hereby VACATED and the Answer filed on December 16, 2022, is admitted by the Court.

Moving party is to give notice.