Judge: Peter A. Hernandez, Case: 23PSCV02084, Date: 2024-01-17 Tentative Ruling
Case Number: 23PSCV02084 Hearing Date: January 17, 2024 Dept: K
Defendant Employer’s
Outsourcing, Inc.’s Motion to Set Aside Entry of Default is GRANTED.
Background
Plaintiff
was employed by Employer’s Outsourcing, Inc. (“EOI”) and Markwins Beauty
Brands, Inc. (“Markwins”) (“together, “Defendants”) as a non-exempt production
employee from in or about March 2022 until her October 31, 2022 termination.
Plaintiff was not provided meal and rest breaks. In or about September 2022,
Plaintiff informed Defendants that she was pregnant. Plaintiff was terminated
under the guise of chatting too much with her co-workers. Plaintiff was not
paid her wages due upon termination and has not been able to inspect her
personnel file. Defendants also failed to pay Plaintiff all of her wages earned
and to provide her with accurate itemized wage statements.
On July 12, 2023, Plaintiff filed a complaint, asserting causes of action against Defendants and Does 1-20 for:
1.
Failure To Provide Meal Periods [Cal. Lab. Code
§§226.7, 512]
2.
Failure To Provide Rest Periods [Cal. Lab. Code
§§226.7, 512]
3.
Failure To Pay All Wages Due Upon Termination: Waiting
Time Penalties [Cal. Lab. Code § 201-203]
4.
Failure To Pay All Wages Earned [Cal. Lab. Code §
201-202, 218, 218.5, 1194, 1194.2, 1198]
5.
Failure To Issue Accurate Itemized Wage Statements
[Cal. Lab. Code § 226, 226.3]
6.
Failure To Timely Produce Personnel File [Cal. Lab.
Code § 1198.5]
7.
Violations Of California’s Unfair Competition Act [Bus.
& Prof. Code § 17200 et seq.]
8.
Violation of Federal Law VII of the Civil Rights Act of
1964
9.
Fair Employment and Housing Act Retaliation (Cal.
Government Code §12951 & 12927-12928 & 12955-12956.1 & 12960-12976)
10.
Discrimination in Violation of Gov’t Code §§12940 Et
Seq.
11.
Harassment in Violation of Gov’t Code §§12940 Et Seq.
12.
Failure to Prevent Discrimination, Harassment, and
Retaliation in Violation of Gov’t Code §12940(K)
13.
Declaratory Judgment
14.
Wrongful Termination in Violation of the Public Policy
On October 2, 2023, EOI’s default was entered.
A Case Management Conference is set for January 17, 2024.
Legal Standard
“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 . . .” (Code Civ. Proc., § 473, subd. (b).)
Discussion
EOI moves the court, per Code of Civil Procedure § 473, subdivision (b), for an order setting aside the October 2, 2023 entry of default on the basis of inadvertence, surprise, mistake, or excusable neglect.
“Excusable neglect” referred to in Section 473, subdivision (b), “is that neglect which might have been the act of a reasonably prudent person under the same circumstances.” (Hodge Sheet Metal Products v. Palm Springs Riviera Hotel (1961) 189 Cal.App.2d 653, 657).
EOI’s Communications Director Giovanni Zamora (“Zamora”) represents, and/or the accompanying exhibit reflects, that CSS is a staffing agency that contracted with EOI for limited back-office administrative services, including payroll processing tasks, for its temporary employees placed to work at its client’s worksites (Zamora Decl., ¶ 3); that CSS placed Plaintiff with Markwins as a temporary employee until her assignment ended (Id.); that, based on its contract with CSS and its believed status as an additional insured under CSS’s Employment Practices Liability Insurance policy, EOI believes and understands that CSS must indemnify and defend EOI from Plaintiff’s claims (Id., ¶ 4); that EOI was contacted by Plaintiff’s counsel in September 2023 regarding the complaint filed by Plaintiff (Zamora Decl., ¶ 5); that on September 27, 2023, he reached out to CSS to advise them of Plaintiff’s complaint and was instructed that day by CSS’s designated Safety and Risk Manager Jesse Pena (“Pena”) to “send the [complaint] to him for handling” (Id., ¶ 6, Exh. A); that he sent Plaintiff’s complaint to Pena on September 28, 2023 (Id.); that CSS did not inform EOI that it would not indemnify or defend it from the action or advise EOI to seek its own legal counsel (Id., ¶ 7) and that EOI did not retain legal counsel for this matter because it believes and understood that CSS was indemnifying and defending it in the lawsuit (Id.) Again, EOI’s default was entered on October 2, 2023.
Plaintiff, in opposition, claims that EOI is not entitled to discretionary relief because its counsel provided numerous warnings to EOI that its default would be entered if it failed to provide an answer. The exhibits attached to attorney Eli Banayan’s (“Banayan”) declaration, however, reflect that EOI was actively communicating with Plaintiff’s counsel commencing August 15, 2023 (i.e., after Plaintiff’s complaint was served by substitute service on August 2, 2023 and before service was made effective August 19, 2023) but was having trouble identifying Plaintiff in its system as late as September 27, 2023, the very day it reached out to CSS. (See Rabban Decl., ¶ 4, Exh. B; Banayan Decl., ¶¶ 2-14, Exhs. A-M).
The court is mindful that “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. In such situations ‘very slight evidence will be required to justify a court in setting aside the default.’” (Elston v. City of Turlock (1985) 38 Cal.3d 227, 233 [citation omitted].) The burden of showing prejudice is on the opposing party. (Aldrich v. San Fernando Valley Lumber Co., Inc. (1985) 170 Cal.App.3d 725, 740). EOI filed the instant motion on November 22, 2023, less than two months after default was entered. Plaintiff has not asserted any prejudice whatsoever.
Additionally, there is no requirement that EOI must affirmatively demonstrate a meritorious defense. (See Shapiro v. Clark (2008) 164 Cal.App.4th 1128, 1144 [“We presume that [Smith v. Busniewski (1952) 115 Cal.App.2d 124] is still good law insofar as it holds that in a separate action in equity brought to set aside a prior judgment, the plaintiff must ‘plead and prove that the result in the main action would have been different had the mistake not occurred [citations], since equity will not grant relief to a party who claims only the barren right of being permitted to defend against a claim to which he has no defense. [Citations.]’ (Id. at p. 128). Courts once imposed a similar requirement on statutory motions to set aside default, but in 1981, . . ., the Legislature abrogated any such requirement by explicitly declaring, ‘No affidavit or declaration of merits shall be required of the moving party.’ (Code Civ. Proc., § 473, subd. (b); Stats. 1981)”].)
The court finds that EOI has adequately demonstrated excusable neglect under Section 473. The motion is granted.