Judge: Latrice A. G. Byrdsong, Case: 22STLC06145, Date: 2023-11-29 Tentative Ruling
Case Number: 22STLC06145 Hearing Date: November 29, 2023 Dept: 25
Hearing Date: Wednesday, November 29, 2023
Case Name: VIRIDIANA
QUEVEDO, an individual v. Intimate Image, a business form unknown; and DOES 1-50
Case No.: 22STLC06145
Motion: Motion to Set Aside Default
Judgment
Moving Party: Defendant
Intimate Image
Responding Party: None
Notice: OK
Tentative Ruling: Defendant Intimate Image’s Motion to
Set Aside Default Judgment is DENIED as MOOT.
BACKGROUND
On September
21, 2022, Plaintiff Viridiana Quevedo (“Plaintiff”) filed this action against
Defendant Intimate Image (“Defendant”) and Does 1 through 50, alleging violations
of Civil Code §§ 51, 52, 54, and 54.1. The complaint alleged that Plaintiff has
a disability within the definition of Government Code §§ 12926 and 12926.1 and
that Plaintiff visited Defendant’s website. However, the website contained
certain barriers that prevented Plaintiff full and equal access to all of the
services offered on the website.
On
January 25, 2023, default was entered against the Intimate Image.
On March
1, 2023, default judgment was entered against Intimate Image.
On July
5, 2023, Defendant filed a motion to set aside default judgment.
On August
11, 2023, Plaintiff filed a request for dismissal.
On November 15, 2023, Defendant
filed the instant motion to set aside default judgment.
MOVING PARTY
POSITION
Defendant
moves to set aside the default judgment entered against it based on its
attorney’s mistake. Counsel takes full responsibility for failing to file an
answer on Defendant’s behalf.
OPPOSITION
None filed
as of November 22, 2023.
REPLY
None filed
as of November 22, 2023
ANALYSIS
I. Motion
to Set Aside Default Judgment
A. Legal
Standard
“Section
473(b) provides for both discretionary and mandatory relief. [Citation.” Pagnini v. Union Bank, N.A. (2018) 28
Cal.App.5th 298, 302. An application for relief under this section must
be made no more than six months after entry of the judgment, dismissal, order,
or other proceeding from which relief is sought and must be accompanied by an
affidavit of fault attesting to the mistake, inadvertence, surprise or neglect
of the moving party or its attorney. Code
Civ. Proc., § 473, subd. (b); English v. IKON Business Solutions (2001)
94 Cal.App.4th 130, 143. In addition, an
application for relief under this section “shall be accompanied by a copy of
the answer or other pleading proposed to be filed herein, otherwise the
application shall not be granted.” Code
Civ. Proc., § 473, subd. (b). Relief
under this section is mandatory when based on an attorney affidavit of fault;
otherwise, it is discretionary. Id.)
When relief from default and default judgment is the attorney’s fault, the
six-month period starts to run from the date of the entry of the default
judgment. Code Civ. Proc., § 473, sub.
(b); Sugasawara v. Newland (1994) 27 Cal.App.4th 294, 295.
B. Jurisdiction
As
a preliminary matter, the Court must address whether it has jurisdiction to
hear this motion because Plaintiff filed a request for voluntary dismissal
months after a default judgment was entered, and this request was entered on
August 11, 2023. Pursuant to Code of Civil Procedure § 581, voluntary dismissal
may be entered “at any time before the actual commencement of trial. . .
.” Code Civ. Proc. § 581(b). Under this statute, trial is “deemed to actually commence at the beginning of
the opening statement or argument of any party or his or her counsel, or if
there is no opening statement, then at the time of the administering of the
oath or affirmation to the first witness, or the introduction of any evidence.” Id. at subd. (a)(6). Also, a dismissal
may be made with prejudice after the commencement of trial. Id. at subd. (e). Considering Plaintiff filed a request for
dismissal after securing a default judgment, this conduct shows that Plaintiff
intended to dismiss this action. The
Court lacks sufficient information to reach a contrary conclusion.
Therefore,
because Plaintiff voluntary dismissed this action, the Court finds that the
instant motion is moot.
II. Conclusion
Based on the foregoing, Defendant Intimate Image’s Motion to Set Aside Default Judgment is DENIED as MOOT.