Judge Kerry Bensinger, Case Number: 19STCV45012, Date: 2023-09-13 Tentative Ruling

Judge: Kerry Bensinger, Case: 19STCV45012, Date: 2023-09-13 Tentative Ruling

Case Number: 19STCV45012 Hearing Date: September 13, 2023 Dept: 27

Tentative Ruling

Judge Kerry Bensinger, Department 27

HEARING DATE: September 13, 2023 TRIAL DATE: Vacated

CASE: Miguel Angel De La Cruz, Jr. v. Sam Entertainment Group, LLC, et al.

CASE NO.: 19STCV45012

MOTION TO SET ASIDE DEFAULT

MOVING PARTY: Defendant Sam Entertainment Group, LLC dba Joseph Bar and Grill

RESPONDING PARTY: No opposition

I. BACKGROUND

This case stems from an alleged assault and battery. Plaintiff Miguel Angel De La Cruz alleges that on December 17, 2017 at approximately 1:00 a.m., Plaintiff was at Joseph’s Bar and Grill located at 11032 Downey Ave, Downey, CA 90241 (the “Premises”), when a female employee pushed him with a closed fist. Plaintiff was then asked to leave by Refugio Mora (“Mora”), and Plaintiff willingly did so. As Plaintiff exited, he asked for the name of the female employee who had pushed him so that he could file a complaint. When Plaintiff asked, Mora grabbed Plaintiff by the throat and pushed Plaintiff to the ground. Thereafter, Plaintiff initiated this action against Defendants, Mora, Joseph’s Bar and Grill, and Sam Entertainment Group. The Complaint was filed on December 17, 2019. Defendants failed to answer the Complaint. Default was entered against Defendants on August 13, 2021.

On July 17, 2023, Defendant, Sam Entertainment Group dba Joseph Bar and Grill, filed this motion to set aside default judgment.

The motion is unopposed.

As a threshold matter, default judgment has not been entered against Defendant. The Court therefore construes this motion as a motion to set aside default.

II. LEGAL STANDARD

The court may, upon any terms as may be just, 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. 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. (Code Civ. Proc., § 473, subd. (b).) In addition, a court must vacate a default or dismissal when a motion for relief under Section 473, subdivision (b) is filed timely and accompanied by an attorney’s sworn affidavit attesting to the attorney’s mistake, inadvertence, surprise or neglect “unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise or neglect.” (Id.)

The party or the legal representative must seek such relief “within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (Code Civ. Proc., § 473, subd. (b); see Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980 [“because more than six months had elapsed from the entry of default, and hence relief under section 473 was unavailable”]; People v. The North River Ins. Co. (2011) 200 Cal.App.4th 712, 721 [motion for relief under section 473 must be brought “within a reasonable time, in no case exceeding six months”].)

After six months from entry of default, a trial court may still vacate a default on equitable grounds even if statutory relief is unavailable. (Olivera v. Grace (1942) 19 Cal.2d 570, 575-76.) “One ground for equitable relief is extrinsic mistake—a term broadly applied when circumstances extrinsic to the litigation have unfairly cost a party a hearing on the merits.” (Rappleyea, supra, 8 Cal.4th at p. 981.) “Extrinsic mistake is found ... [in] cases involving negligence of a party’s attorney ....” (Kulchar v. Kulchar (1969) 1 Cal.3d 467, 472.) “ ‘Extrinsic mistake involves the excusable neglect of a party. [Citation.] When this neglect results in an unjust judgment, without a fair adversary hearing, and the basis for equitable relief is present, this is extrinsic mistake. [Citation.]’ ” (Heyman v. Franchise Mortgage Acceptance Corp. (2003) 107 Cal.App.4th 921, 926.)

“To set aside a judgment based upon extrinsic mistake one must satisfy three elements. First, the defaulted party must demonstrate that it has a meritorious case. Second, the party seeking to set aside the default must articulate a satisfactory excuse for not presenting a defense to the original action. Last, the moving party must demonstrate diligence in seeking to set aside the default once ... discovered.” (Rappleyea, supra, 8 Cal.4th at p. 982.)

III. DISCUSSION

As more than six months have passed since default was entered, Defendant seeks equitable relief to set aside the default. Defendant offers the declaration of its office manager, Laurie Vasquez, to show the default was taken because of mistake and excusable neglect. After being served with the Complaint, Ms. Vasquez turned over the lawsuit to Defendant’s workers’ compensation insurance carrier Employer’s Insurance. However, Employer’s Insurance did not retain counsel to protect Defendant’s interests and, as a result, Defendant did not file an answer. (See Vasquez Decl.) Further, Defendant did not realize its mistake because the case was dormant for many years.

Based on the foregoing, and Plaintiff’s failure to file any opposition, the Court finds the default was taken against Defendant due to extrinsic mistake. (Olivera, supra, 19 Cal.2d at pp. 575-76.)

IV. CONCLUSION

The unopposed motion to set aside the August 13, 2021 default against Defendant Sam Entertainment Gril dba Joseph’s Bar and Grill is GRANTED.

Defendant is directed to file and serve its Answer within 10 days of this order.

Moving party to give notice.

Dated: September 13, 2023 ___________________________________

Kerry Bensinger

Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.