Judge: Monica Bachner, Case: 19STCV13531, Date: 2022-09-21 Tentative Ruling

Department 71: Attorneys who elect to submit on these published tentative rulings, without making an appearance at the hearing, may so notify the Court by communicating this to the Department's staff at (213) 830-0771 before the set hearing time.  See, e.g., CRC Rule 324(b).   All parties are otherwise encouraged to appear by Court Call for all matters.

Case Number: 19STCV13531    Hearing Date: September 21, 2022    Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

Defendant Pete Guerrero’s motion to set aside default judgment is denied without prejudice.

Defendant Pete Guerrero’s motion in the alternative to vacate judgment is denied. 

Defendant Pete Guerrero (“Guerrero”) (“Defendant”) moves for an order to set aside the default entered against him in this action brought by Plaintiff Gabrielle Espinosa (“Espinosa”) (“Plaintiff”) pursuant to C.C.P. §473(b), or in the alternative vacate judgment pursuant to C.C.P. §663.  Defendant moves to set aside the judgment on the grounds of “mistake, inadvertence, surprise or excusable neglect” by the defendant’s attorney and the Clerk of the Superior Court.  (Notice Set Aside, pg. 2.)  Alternatively, Defendant moves to vacate the judgment on grounds that (1) the legal basis for the decision is not consistent with or supported by the facts, or (2) the judgment is not consistent with facts presented and said error materially affects the substantial rights of Defendant.  (Notice Vacate Judgment, pg. 2.)

Background

On April 18, 2019, Plaintiff filed her complaint against Defendants Guerrero and South Bay Pre-Owned, Inc. (“South Bay”) (collectively, “Defendants”).  Plaintiff filed a proof of personal service on May 6, 2019. Plaintiff filed the operative First Amended Complaint (“FAC”) on November 6, 2020, alleging causes of action for (1) failure to pay overtime wages; (2) failure to provide meal periods; (3) failure to authorize or permit rest periods; (4) failure to pay minimum wages; (5) failure to furnish accurate itemized wage statements; (6) waiting time penalties; (7) failure to timely pay all wages due during employment; (8) failure to provide wage statements within 21 days; and (9) unfair business practices.  On November 7, 2019, Plaintiff filed a proof of service of the FAC by mail indicating that the summons and complaint were served on Defendants.  On January 21, 2020, the Clerk entered Default against Plaintiff, and this Court entered Default Judgment on July 15, 2020.  A Writ of Execution was filed on December 3, 2021.

On April 19, 2022, Defendant Guerrero filed the instant motion pro per. On September 1, 2022, Plaintiff filed an opposition to the instant motion. As of the date of the hearing, Defendant has not filed a reply.

C.C.P. §473(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.  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…”  (C.C.P. §473(b).)

As a preliminary matter, Defendant’s motion is not timely, as it was filed more than six months after entry of default judgment on July 15, 2020.  In addition, Defendant did not file and submit a proposed Answer or other pleading with this motion, as required by C.C.P. §473(b).  (The proposed answer was filed a few days late.) 

Defendant has not met his burden to establish the default entered against him was the result of mistake, inadvertence, surprise, and/or excusable neglect.  Without this showing, the Court has no discretion to grant relief.  (Schwab v. Southern California Gas Co. (2004) 114 Cal.App.4th 1308, 1319.)  Defendant declares that he received the Complaint and was in contact with his purported attorney, Brian Castorina, via Miguel Zapien, a paralegal who gave Defendant assurances that Castorina was “taking care” of Defendant’s responses in this case.  (Decl. of Guerrero ¶¶5-8.)  Defendant gave Zapien copies of filings in this case to provide to Castorina.  (Decl. of Guerrero ¶8.)  After Defendant’s accounts were attached and his funds were forwarded to the Los Angeles Sheriff’s Office, Defendant contacted Castorina and demanded Castorina set aside the judgment.  (Decl. of Guerrero ¶8.)  Defendant acknowledges that he “understand[s] now that [he] could have filed an Answer” as an individual Defendant, “but as a corporation [he] could not, [he] needed [his] attorney to do so. [He] completely relief on [his] attorney to let [him] know.” (Decl. of Guerrero ¶8.)  Defendant declared that he had notice of the pleadings filed against him and cannot justify his failure to timely file a responsive pleading.  This Court cannot set aside the default entered against Defendant because his filing is not timely and does not follow the procedural requirements of C.C.P. §473(b).

Based on the foregoing, Defendant’s motion to set aside default judgment is denied without prejudice. 

C.C.P. §663

A defendant against whom a default has been entered is out of court and is not entitled to take any further affirmative steps in the action, such as filing a pleading or motion, except for a motion for relief from the default.  (Bailey v. Citibank, N.A. (2021) 66 Cal.App.5th 335, 347; Steven M. Garber & Assocs. v Eskandarian (2007) 150 Cal.App.4th 813, 819.)  Any other motions by a defendant in default are unauthorized and void. (Humphrey v. Bewley (2021) 69 Cal.App.5th 571, 580.)  

Accordingly, Defendant’s motion in the alternative to vacate default judgment is denied. 

Dated:  September _____, 2022

Hon. Monica Bachner

Judge of the Superior Court