Judge Michelle C. Kim, Case Number: 19STCV44540, Date: 2023-07-11 Tentative Ruling

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

BERTHA GOMEZ-CRUZ,

Plaintiff(s),

vs.

R-RANCH MARKET, INC. DBA BODEGA “R” RANCH, ET AL.,

Defendant(s).

)

CASE NO: 19STCV44540

[TENTATIVE] ORDER RE: DEFENDANT’S MOTION TO VACATE DEFAULT

Dept. 31

1:30 p.m.

December 20, 2023

I. Background

On December 12, 2019, Plaintiff, Bertha Gomez-Cruz (“Plaintiff”) filed this action against Defendant R-Ranch Market, Inc. dba Bodega “R” Ranch for damages arising from a slip and fall on a foreign substance on the floor. Default was entered on May 5, 2023, and default judgment entered on August 25, 2023.

On October 26, 2023, Defendant HAFSA Corporation dba R-Ranch Market, erroneously sued as R-Ranch Market, Inc. dba Bodega “R” Ranch, (“Defendant”) filed the instant motion to set aside the default and default judgment.

Plaintiff opposes the motion, and Defendant filed a reply.

Moving Argument

Defendant asserts that Plaintiff erroneously sued and served the wrong defendant, and that the right entity, and that the proper business entity for the owner of the store in which Plaintiff allegedly fell was HAFSA Corporation dba R-Ranch Market. Defendant argues the proper entity did not have legal notice of Plaintiff’s suit, and default was entered against the wrong entity, thereby making the default void. Defendant requests that the default be voided so that the proper defendant, HAFSA Corporation dba R-Ranch Market, may file its Answer for the case to proceed on the merits.

Opposing Argument

Plaintiff argues she in good faith believed that default was obtained against the correct entity, and argues Defendant is either misrepresenting the correct entity or that Defendant seeks to evade default judgment on technicality. Plaintiff further argues that the naming of an incorrect fictitious name is of no consequence, because default judgment can be obtained against the fictitious business name where a plaintiff sues a corporation by both its corporate name and fictitious business name.

Reply Argument

Defendant contends the true owner of the establishment Plaintiff was allegedly injured at is not R-Ranch Market Inc., and that the true owner is HAFSA Corporation. Defendant avers this lawsuit was filed against the wrong owner, as opposed to an issue of the true fictitious business name.

II. Legal Standard

The Court may set aside any void judgment or order at any time. (Code Civ. Proc., § 473, subd. (d); Strathvale Holdings v. E.B.H. (2005) 126 Cal.App.4th 1241, 1249.)¿¿Code of Civil Procedure section 473.5, subdivision (a) provides, “When service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action. The notice of motion shall be served and filed within a reasonable time, but in no event exceeding the earlier of: (i) two years after entry of a default judgment against him or her; or (ii) 180 days after service on him or her of a written notice that the default or default judgment has been entered.” (Code Civ. Proc., § 473.5, subd. (a).)

“After six months from default, a trial court may still vacate a default on equitable ground even if statutory relief is unavailable.”¿ (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981.)¿ A party may obtain equitable relief from an entry of dismissal based on an extrinsic mistake when the moving party: (1) has a meritorious case, (2) articulates a satisfactory excuse for not presenting a defense to the original action, and (3) demonstrates diligence in seeking to set aside the dismissal once discovered.¿ (Id. at p. 982.)¿

Defendant provides the declaration of Dora L. Peratoner, the Vice President of Operations for HAFSA Corporation dba R-Ranch Market, in support of its contention that it is the true owner of 5212 W. Adams Blvd., Los Angeles, CA 90016. Further, the motion was served and filed within a reasonable time, within two years after entry of default. Pursuant to the policy favoring deposing of cases of their merits, these facts warrant setting aside the default entered against Defendant. (Taliaferro v. Taliaferro (1963) 217 Cal.App.2d 216, 220 [“It is the policy of the law that every case should be heard upon the merits where possible; that a motion to set aside a default is one addressed to the sound discretion of the court; that the ruling on such motion will not be reversed in the absence of a clear showing of abuse of discretion; that section 473 is a remedial provision to be liberally construed to the end that cases be disposed of upon their merits.”].)

The motion is therefore GRANTED. The May 5, 2023 default and August 25, 2023 default judgment obtained against R-Ranch Market, Inc. dba Bodega “R” Ranch is set aside. Defendant is ordered to file its proposed Answer within ten (10) days. Considering the age of this case, the parties must move expeditiously in litigating this action.

Defendant is ordered to give notice.

PLEASE TAKE NOTICE:

Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement.
If a party intends to submit on this tentative ruling,¿the party must send an email to the court at¿sscdept31@lacourt.org¿with the Subject line “SUBMIT” followed by the case number.¿ The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.¿¿
Unless¿all¿parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.¿ You should assume that others may appear at the hearing to argue.¿¿
If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.¿ After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave.¿

Dated this 19th day of December 2023


	Hon. Michelle C. Kim Judge of the Superior Court