Judge Kerry Bensinger, Case Number: 20STCV17540, Date: 2024-05-23 Tentative Ruling

Counsel may submit on the tentative ruling by emailing Dept. 31 before 8:30 the morning of the hearing. The email address is smcdept31@lacourt.org. Please do not call the court to submit on the tentative. Please do not submit to the tentative ruling on behalf of the opposing party. Please do not e-mail the Court if you plan to appear and argue.

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The tentative rulings authored by this court reflect that the court has read and considered all pleadings and evidence timely submitted to the court in connection with the motion, opposition, and reply (if any). Because the pleadings were filed, they are part of the public record.

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Plaintiff, Irma Gonzalez commenced this wage and hour suit against her employer, Defendant Martini Associates Development LLC d/b/a Los Angeles Adventurer All-Suite Hotel (“Martini Associates”), alleging various Labor Code violations, and, in relevant part, Private Attorney General Act (PAGA) claims. The operative pleading is the First Amended Complaint (FAC).

On January 21, 2021, Plaintiff added Frank Martini as a defendant in this action by way of Doe amendment.

On April 25, 2022, Martini Associates and Frank Martini (collectively, “Defendants”) filed a demurrer to the FAC.

On October 7, 2022, before the hearing on the demurrer, the court granted Defendants’ Counsel’s motion to be relieved as counsel.

On May 3, 2023, Plaintiff moved to strike Martini Associates’ demurrer for failure to retain new legal counsel. The court granted the motion on July 5, 2023. The court ordered Martini Associates’ demurrer as stricken and entered default against Martini Associates.

On December 5, 2023, Plaintiff filed a Default Judgment package which included a Request for Dismissal without prejudice of her PAGA cause of action.

On April 19, 2024, the clerk of the court entered default against Defendant Frank Martini.

Code of Civil Procedure section 473, subdivision (b) provides that a court may “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.” 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.” (Code Civ. Proc., § 473, subd. (b).)

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”].)

Plaintiff seeks relief to vacate the dismissal order of her PAGA claim on the following grounds: (1) Plaintiff timely filed this motion within 6 months of the December 5, 2023 order dismissing her PAGA claim, and (2) Plaintiff’s counsel submitted a default judgment package to the Court which inadvertently included a request for dismissal of the PAGA cause of action without prejudice. (Afgani Decl., ¶¶ 5-6.) For these reasons, Plaintiff argues she is entitled to mandatory relief.

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

The court finds that Plaintiff is entitled to mandatory relief. As Defendants are in default, there is no opposition directing a different result.

The unopposed motion to vacate is GRANTED. Plaintiff’s PAGA cause of action is reinstated.

Having reinstated Plaintiff’s PAGA cause of action, the court directs Plaintiff to re-serve Defendants with the summons and complaint.

Kerry Bensinger

Judge of the Superior Court

[1] This motion was filed on April 5, 2024.