SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

 

 

1. Background  

On October 20, 2022, Plaintiff Amer Lafi (“Plaintiff”) filed this action against Defendant Michael DeGuzman (“DeGuzman”) and Does 1 to 25 for injuries arising from a motor vehicle incident.  On March 21, 2023, Plaintiff filed an Amendment to Complaint naming CourierRx, LLC (“CourierRx”) as Doe 1. Plaintiff allegedly served CourierRx with the summons and complaint by personal service upon Courierrx’s general manager Michael Chavez (“Mr. Chavez”) on March 23, 2023. On May 15, 2023, Plaintiff obtained Courierrx’s default. 

On July 13, 2023, CourierRx filed the instant motion to set aside the default. Plaintiff opposes the motion, and CourierRx replies.  

CourierRx asserts that its general manager, Mr. Chavez, did not alert company management of the service of the summons and complaint because he mistakenly believed Defendant DeGuzman was handling the lawsuit. Therefore, CourierRx failed to respond to the complaint. After Plaintiff obtained entry of default, CourierRx hired counsel, who requested Plaintiff’s counsel to set aside the default. CourierRx avers that Plaintiff’s counsel refused to set aside the default unless CourierRx paid Plaintiff $1,000. As a result, CourierRx brings this instant motion.  

In opposition, Plaintiff contends that CourierRx’s initial argument with Plaintiff’s counsel was that service of process was improper because Mr. Chavez was not CourierRx’s authorized agent for service. Therefore, Plaintiff argues that because CourierRx is now placing blame upon Mr. Chavez, that CourierRx has not set forth sufficient evidence to justify its failure to respond. Additionally, Plaintiff contends that CourierRx failed to provide a copy of the answer or other pleading proposed as required. Plaintiff requests monetary sanctions against CourierRx for opposing this motion and for work related to obtaining default.  

In reply, provides that discretionary relief is warranted because Mr. Chavez neglected to convey notice of the summons and complaint to CourierRx’s executives. Upon receiving notice, CourierRx avers that it acted promptly by retaining counsel and engaging with Plaintiff’s counsel. Additionally, CourierRx attaches a copy of the proposed Answer to Plaintiff’s complaint as an exhibit.  

 

2. Motion to Set Aside Default 

CCP § 473(b) states in pertinent part: 

 

Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect… 

 

“To obtain mandatory relief under section 473, plaintiffs' counsel need not show that his or her mistake, inadvertence, surprise or neglect was excusable. No reason need be given for the existence of one of these circumstances. Attestation that one of these reasons existed is sufficient to obtain relief, unless the trial court finds that the dismissal did not occur because of these reasons.”  (Graham v. Beers (1994) 30 Cal.App.4th 1656, 1660; accord. Leader v. Health Indus. of America, Inc. (2001) 89 Cal.App.4th 603, 616 [“The range of attorney conduct for which relief can be granted in the mandatory provision is broader than that in the discretionary provision, and includes inexcusable neglect”.].)   

In this case, default was entered on May 15, 2023. CourierRx filed the instant motion on July 13, 2023, which is within six months from the date the default was entered.  Consequently, CourierRx’s motion is timely. 

However, mandatory relief under section 473(b) pertains to attorney conduct. Where counsel seek relief alternatively under both the excusable and attorney-fault provisions of Code of Civil Procedure Section 473, and confirms that any act or omission leading to the entry of the default was done without the client's knowing participation, relief is mandatory. (Solv-All v. Sup. Ct. (2005) 131 Cal.App.4th 1003, 1012.) The declaration of CourierRx’s counsel is silent as to any mistake, inadvertence, surprise or neglect by counsel. Instead of mandatory relief, it appears that CourierRx is seeking discretionary relief under section 473(b). 

CourierRx submits the declaration Mr. Chavez attesting to his neglect and mistake. When the grounds for relief under 473 is discretionary, the party must demonstrate mistake of fact or excusable mistake of law, inadvertence, surprise, or excusable neglect. This standard is notably different from the mandatory relief provisions of attorney fault, in which attorney neglect or mistake need not be excusable. Mr. Chavez provides that he was personally served with the summons and complaint on March 23, 2023. (Decl. Chavez, ¶ 2.) Mr. Chavez was under the belief that Defendant DeGuzman was handling the lawsuit, and therefore Mr. Chavez did not provide a copy of the Complaint or disclose information of this lawsuit to CourierRx’s president, Mr. Doss, or any other member of CourierRx management. (Ibid.) Mr. Chavez received a letter from Plaintiff’s counsel in or around May 25, 2023, and forwarded the letter to Mr. Doss. (Id. at ¶ 3.) Prior to the May 25, 2023 letter, Mr. Chavez did not communicate with Mr. Doss or CourierRx management. (Id. at ¶ 4.) CourierRx’s counsel’s declaration provides that they contacted Plaintiff’s counsel on May 25, 2023 acknowledging receipt of the letter dated May 23, 2023. (Decl. Earley, ¶ 2.) At that time, CourierRx contested whether service was proper, and contended with Plaintiff’s counsel through email that Mr. Chavez was not the authorized agent for service of process. (Id. at ¶ 3; Exh. B.) 

Plaintiff contends that CourierRx’s provide inconsistent arguments, which undermines its position. However, CourierRx’s contentions with Plaintiff’s counsel and the arguments raised in the moving papers are not necessarily in contradiction to each other. CourierRx initially contesting service on May 25, 2023 to Plaintiff’s counsel, and Mr. Chavez’s declaration that he did not inform CourierRx of the service of the summons and complaint until in or around May 25, 2023, are not necessarily at odds with each other.  

 Although Plaintiff asserts that Plaintiff’s counsel warned CourierRx twice of the failure to serve a responsive pleading and that default would occur, there is no evidence that CourierRx knew of the letters earlier than May 25, 2023. Both the April 26, 2023 and May 25, 2023 letters were addressed to Mr. Chavez. Mr. Chavez’s declaration only acknowledges the May 25, 2023 letter and he declared, under penalty of perjury, that it was only at this point he informed his employer CourierRx of the service of the summons and complaint and the default. There is also no evidence to infer that CourierRx knew that it had to file a responsive pleading prior to the May 25, 2023 letter, and deliberately chose not to do so. Furthermore, Mr. Chavez’s misunderstanding and failure to inform CourierRx of the summons and complaint is excusable under the circumstances, especially as Plaintiff identifies no prejudice aside from the costs associated with obtaining entry of default and preliminary work on a default judgment. Pursuant to the policy favoring deposing of cases of their merits, these facts warrant setting aside the default entered against CourierRx.  (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.”].) 

CourierRx provides a copy of the proposed Answer in its reply. With regard to the requirement of lodging a proposed pleading under Code of Civil Procedure Section 473, substantial compliance is sufficient.  (Austin v. L. A. Unif. School Dist. (2016) 244 Cal.App. 4th 918, 933  (“ ‘The plain object of the provision [requiring a copy of the answer or other pleading] was simply to require the delinquent party seeking leave to contest on the merits, to show his good faith and readiness to at once file his answer in the event leave is granted by producing a copy of the proposed answer for the inspection of his adversary and the court.’ ”).). 

Therefore, CourierRx’s motion to set aside the default is granted. (CCP § 473(b).) Sanctions are discretionary, which the Court declines to award. CourierRx is ordered to file a separate copy of the proposed Answer within fifteen (15) days.     

 

Moving Defendant is ordered to give notice. 

 

PLEASE TAKE NOTICE: 

Dated this 11th day of August 2023