Judge: Michelle Williams Court, Case: 19STCV31755, Date: 2023-02-09 Tentative Ruling

Case Number: 19STCV31755    Hearing Date: February 9, 2023    Dept: 74

Superior Court of California

County of Los Angeles – CENTRAL District

Department 74

MOVING PARTIES:             Defendant R.L.C.S. Inc. (“Defendant”)

RESPONDING PARTY:        Plaintiff Jenna White-Aguayo (“Plaintiff”)

Motion to Set Aside/Vacate Default

The court considered the moving papers, opposition, and reply papers filed in connection with this motion.

BACKGROUND

            Plaintiff filed this action on September 6, 2019 against Defendants R.L.C.S. Inc. and Red Line Courier Service alleging various FEHA claims relating to Plaintiff’s employment with Defendants. Defendant R.L.C.S. Inc. (“Defendant”) filed an answer and has been engaged in the litigation process after the initial complaint was filed. On August 30, 2022, Plaintiff filed a First Amended Complaint. Defendant failed to file an answer, and on October 19, 2022, an entry of default was entered against Defendant.

            Defendant Red Line Courier Service, Inc. was dismissed on September 28, 2022.

            On November 23, 2022, Defendant filed a motion to set aside/vacate the default pursuant to Code of Civil Procedure section 473(b).

LEGAL STANDARD

            Under Code of Civil Procedure, section 473(b), 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 excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (Code Civ. Proc. § 473(b).)  

DISCUSSION

Defendant argues that the default judgment was entered as a result of excusable neglect. On June 13, 2022, Defendant’s counsel’s request to be relieved was granted. On July 6, 2022, Defendant’s Answer was stricken because Defendant failed to retain counsel. Then, Plaintiff filed a First Amended Complaint on August 30, 2022. Because Defendant was still unrepresented, Defendant was not able to file an answer as it could not answer for itself as an unrepresented entity. (See Merco Constr. Engineers, Inc. v. Mun. Ct. (1978) 21 Cal. 3d 724, 727.) When Defendant failed to file an answer, default was entered on October 19, 2022. Defendant filed the instant motion on November 23, 2022.

Defendant includes a declaration of Defendant’s new counsel that states that Defendant retained the new firm to represent it in September of 2022 and counsel was assigned in October of 2022. (Morgan Decl. ¶ 3.) Counsel states that she first became aware of the Request for Entry of Default at the Case Management Conference on October 25, 2022. (Morgan Decl. ¶ 4.)

Defendant also includes a declaration of the owner and custodian of record for Defendant R.L.C.S. Inc. that states that after former counsel withdrew, he actively sought out new counsel to represent Defendant. (Sundling Decl. ¶ 3.) He states that he did not file an answer or respond to the First Amended Complaint because California law precluded him from doing so until he obtained new counsel. (Sundling Decl. ¶ 4.)

The court finds Defendant has established that the entry of default was procured by Defendant’s excusable neglect of failing to obtain new counsel. Defendant obtained new counsel shortly after the First Amended Complaint was served. The default was entered within a month of when counsel was obtained and counsel states that she was not aware of the entry of default until the Case Management Conference on October 25, 2022. The court finds that Defendant’s delay in obtaining counsel was not unreasonable.  In addition, the court notes that Defendant has submitted a proposed answer to the complaint.

Plaintiff requests that Defendant pay a penalty of $1,000.00 under Code of Civil Procedure section 473(c)(1). Defendant does not object to this request. Plaintiff has submitted a declaration showing that counsel has spent 1.2 hours preparing the request for default and has spent 2 hours preparing the present opposition at an hourly rate of $550 per hour. (Hane Decl. ¶ 10.) Attorney’s fees relating to the default exceed the maximum limit of $1,000. The court grants Plaintiff’s request and orders Defendant to pay $1,000.00 in sanctions.

CONCLUSION

Based on the foregoing, the court grants Defendant’s motion for relief from default.

The court orders that the default entered against Defendant R.L.C.S. Inc. be vacated.

The court orders that the answer filed on behalf of Defendant is deemed filed as of February 9, 2023.  

Defendant is ordered to pay $1,000.00 in sanctions within thirty (30) days of notice of this order.

Defendant is ordered to give notice of this ruling.

IT IS SO ORDERED.

DATED:  February 9, 2023

_____________________________

Colin Leis

Judge of the Superior Court