Judge Lynette Gridiron Winston, Case Number: 24PSCV00280, Date: 2024-08-26 Tentative Ruling

Judge: Lynette Gridiron Winston, Case: 24PSCV00280, Date: 2024-08-26 Tentative Ruling

Case Number: 24PSCV00280 Hearing Date: August 26, 2024 Dept: 6

CASE NAME: Flexi-Van Leasing, LLC. v. Duron Trucking Services, Inc.

Defendant Duron Trucking Services, Inc.’s Motion to Set Aside the Request for Entry of Default

TENTATIVE RULING

The Court GRANTS Defendant Duron Trucking Services, Inc.’s motion to set aside the request for entry of default. The Court will deem the answer filed on April 8, 2024 as the operative answer.

Defendant Duron Trucking Services, Inc. is ordered to give notice of the Court’s ruling within five calendar days of this order.

BACKGROUND

This is a debt collection case. On January 29, 2024, plaintiff Flexi-Van Leasing, LLC (Plaintiff) filed this action against defendant Duron Trucking Services, Inc. (Defendant) and Does 1 through 10, alleging causes of action based on common counts. On April 8, 2024, default was entered against Defendant.

On July 24, 2024, Defendant moved to set aside the default. On August 9, 2024, Plaintiff opposed the motion. On August 13, 2024, Defendant replied.

LEGAL STANDARD

Under Code of Civil Procedure, section 473, subdivision (b), “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.” (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.) An application for relief must be made no more than six months after entry of the order from which relief is sought and must be accompanied by an affidavit of fault attesting to the moving party’s mistake, inadvertence, surprise, or neglect. (Id.; English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 143.)

DISCUSSION

Summary of Arguments

Defendant seeks to set aside the entry of default on the grounds that the motion is timely and Defendant has met and conferred with Plaintiff. Defendant indicates after service of the complaint, Defendant’s counsel attempted to contact Defendant regarding the complaint and authority to proceed, but Defendant’s counsel had an invalid phone number. Defendant indicates that after receiving the request for entry of default, Defendant immediately contacted Plaintiff in an attempt to meet and confer, and contends that Plaintiff declined to set aside the default at the Case Management Conference on July 2, 2024. Defendant also contends there is excusable neglect based on Defendant’s communications with the clerk’s office regarding whether Defendant’s answer was filed and whether the request for entry of default had been accepted. Defendant further contends that there is excusable neglect due to Defendant’s counsel getting buried in work, that public policy favors trial on the merits, and that the Court is obligated to liberally construe statutes regarding relief from defaults.

In opposition, Plaintiff contends Defendant’s recitation of the facts is false, and that Defendant’s agent for service of process, Olga Duron, was the person served, not Defendant’s counsel. Plaintiff contends Defendant’s counsel did not become Defendant’s agent for service of process until May 2024, i.e., three months after Defendant was served. Plaintiff contends Defendant did not demonstrate diligence in seeking to set aside the default, as there is no declaration from Defendant itself, while Defendant’s counsel’s declaration is based on made up facts. Plaintiff contends Defendant fails to explain why Defendant’s counsel did not have current contact information from Defendant, and that Defendant’s counsel has been representing Defendant in other cases, one of which is currently on appeal. Plaintiff contends Defendant received multiple notices regarding this case, as Plaintiff contacted Defendant’s counsel shortly after filing the complaint, and also provided other documents to Defendant’s counsel, in which Plaintiff also mentioned that it had been 40 days since the complaint was served.

Analysis

“’Because the law strongly favors trial and disposition on the merits, any doubts in applying section 473 must be resolved in favor of the party seeking relief from default [citations].’ [Citation.]” (Grappo v. McMills (2017) 11 Cal.App.5th 996, 1005-1006.) “[Code of Civil Procedure section 473] is often applied liberally where the party in default moves promptly to seek relief, and the party opposing the motion will not suffer prejudice if relief is granted. [Citations.] In such situations ‘very slight evidence will be required to justify a court in setting aside the default.’ [Citations.]” (Grappo, supra, 11 Cal.App.5th at p. 1005.) “The law favors judgments based on the merits, not procedural missteps.” (Lasalle v. Vogel (2019) 36 Cal.App.5th 127, 134.) Here, the Court does not find all of Defendant’s arguments persuasive. Contrary to Defendant’s contention in its moving papers, the complaint was not served on Defendant’s counsel; rather, it was substitute served on Defendant’s agent for service of process. (Proof of Service (2/20/24).) Defendant's counsel declares that he tried contacting Defendant but did not have a working number for his client which delayed him from getting authority to file a response to the Complaint. (Booska Decl., ¶ 3, 4.) The Court could certainly find this sufficient to constitute excusable neglect. However, regardless of who was served, Defendant filed its answer on April 8, 2024 before the clerk’s office entered the previously requested default. Thereafter, Defendant filed a case management conference statement on June 17, 2024 and appeared for the case management conference on July 2, 2024. (Case Management Statement (6/17/2024), Minute Order (7/2/24). The Court finds the issues with the clerk’s office to be problematic. If the clerk’s office received the request for entry of default before Defendant filed its answer, the clerk’s office should have rejected the answer, but it did not. (See Answer (4/8/24).) Thus, Defendant was able to file its Answer, participate in the litigation and was forced to file this motion after Plaintiff refused to stipulate to set aside the default that was entered after the answer was filed but as of the date the request was received.

The Court also takes issue with Plaintiff’s failure to warn Defendant before filing the request for entry of default. It is not enough that Plaintiff’s counsel mentioned the complaint had been served 40 days prior when providing the proof of service to Defendant’s counsel on March 20, 2024. (Booska Decl., ¶ 6, Ex. 7.) Plaintiff needed to clearly apprise Defendant of Plaintiff’s intent to seek entry of default if Defendant did not respond to the complaint. (Lasalle v. Vogel (2019) 36 Cal.App.5th 127, 135, italics in original [“an attorney has an ethical obligation to warn opposing counsel that the attorney is about to take an adversary's default. [Citation.]”) Plaintiff only indicates waiting five days before proceeding with the request for entry of default on March 25, 2024. (Booska Decl., ¶ 7.)

The Court further notes that substitute service of the complaint on Defendant was not complete until it was mailed on February 11, 2024. (Proof of Service (2/20/24); see Code Civ. Proc., § 415.20, subd. (a) [service deemed complete on 10th day after mailing].) This means the earliest possible day for default to be entered was March 25, 2024, i.e., the day Plaintiff filed the request for entry of default. Such a quick entry of default without having properly warned Defendant requires only minimal evidence of neglect. (See Purdum v. Holmes (2010) 187 Cal.App.4th 916, 922 [relief from default properly granted where plaintiff took default without warning on first possible day, defendant tendered complaint to insurer on same day, and plaintiff failed to demonstrate any prejudice].) The Court further notes Plaintiff has not presented any evidence of prejudice that will occur by setting aside the default.

Based on the foregoing, the Court exercises its discretion and GRANTS the motion.

CONCLUSION

The Court GRANTS Defendant Duron Trucking Services, Inc.’s motion to set aside the entry of default. The Court will deem the answer filed on April 8, 2024 as the operative answer.

Defendant Duron Trucking Services, Inc. is ordered to give notice of the Court’s ruling within five calendar days of this order.