Judge Ronald F. Frank, Case Number: 23TRCV03445, Date: 2024-06-04 Tentative Ruling

Judge: Ronald F. Frank, Case: 23TRCV03445, Date: 2024-06-04 Tentative Ruling

Case Number: 23TRCV03445 Hearing Date: June 4, 2024 Dept: 8

Tentative Ruling¿

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HEARING DATE: June 6, 2024¿¿

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CASE NUMBER: 23TRCV03445

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CASE NAME: Rafael Marquez Morales v. Unified Protective Services, Inc., et al.

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MOVING PARTY: Defendant, Unified Protective Services

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RESPONDING PARTY: Plaintiff, Rafael Marquez Morales (No Opposition)

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TRIAL DATE: Not Set.

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MOTION:¿ (1) Motion to Set Aside Default

Tentative Rulings: (1) GRANTED. Discuss whether any conditions should be imposed on the granting of the motion, such as payment of Plaintiff’s expenses in applying for the Clerk’s default. Defendant shall file the proposed answer as a stand-alone pleading in 15 days.

I. BACKGROUND¿¿

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A. Factual¿¿

On October 20, 2023, Plaintiff, Rafael Marquez Morales (“Plaintiff”) filed a Complaint against Defendant, Unified Protective Services, Inc., and DOES 1 through 50. The Complaint alleges causes of action for: (1) Discrimination in Violation of Gov. Code §12940 et seq.; (2) Failure to Accommodate in Violation of Gov. Code § 12940(m); (3) Failure to Engage in Interactive Process in Violation of Gov. Code § 12940(n); (4) Age Discrimination in Violation of Gov. Code §12940 et seq.; (5) Failure to Prevent Discrimination in Violation of Gov. Code § 12940(k); (6) Retaliation in Violation of Gov. Code §12940(h); (7) Wrongful Termination; (8) Meal and Rest Break Violations of Labor Code § 226.7; (9) Failure to Provide Employment Records in Violation of Cal. Labor Code §1198.5 et seq.; (10) Failure To Pay Overtime & Wages; (11) Failure to Pay All Compensation at Termination; Waiting Time Penalties; and (12) Violation of Business & Professions Code § 17200, et seq..

On April 23, 2024, Plaintiff filed a Request for Entry of Default. On April 24, 2024, that request was granted. Now, Defendant files a Motion to Set Aside Default.

B. Procedural

On May 10, 2024, Defendant filed this Motion to Set Aside Default. To date, no opposition has been filed.

II. ANALYSIS¿

A. Legal Standard

Pursuant to Code of Civil Procedure §473(b), both discretionary and mandatory relief is available to parties from a judgment, dismissal, order, or other proceeding. Discretionary relief is available under the statute as “the court may, upon any terms as may be just, relieve a party or his or her legal representative from judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. (Code of Civ. Proc. §¿473(b).) Alternatively, mandatory relief is available when “accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect.” (Ibid.) Under this statute, an application for discretionary or mandatory relief must be made no more than six months after entry of the judgment, dismissal, order, or other proceeding from which relief is sought. (Code Civ. Proc., § 473(b); English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 143.)

“‘[W]hen relief under section 473¿is¿available, there is a strong¿public¿policy¿in¿favor¿of granting relief and allowing the requesting party his or her day in court…[Citation.]” (Rappleyea v. Campbell¿(1994) 8 Cal. 4th 975, 981-82.)

B. Discussion

Mistake, Inadvertence, Surprise, or Excusable Neglect

Here, Defendant argues that this Court should set aside the default pursuant to Code of Civil Procedure section 473(b) due to the fact that Plaintiff’s counsel did not give a notice prior to filing request for entry of default. Counsel for Defendant asserts that Plaintiff’s counsel did not provide notice of the default. Defendant contends that Plaintiff filed the Complaint and just over two weeks after the deadline to file a responsive pleading, requested entry of default without providing notice to Defendant. Based on this, Defense counsel contends that this default entry came as a “surprise” to him. However, the Request for Default Judgment filed by Plaintiff indicates that service was mailed via first-class, postage prepaid, in a sealed envelope addressed to each of defendant’s attorneys on April 23, 2024.

Irrespective of whether Defendant was or was not served, this Court may still grant this motion pursuant to mandatory relief. Counsel for Defendant indicates via his declaration (“Badkoubehi Decl.”) that the failure of Defendant to serve a responsive pleading is due to his failure to calendar the deadline. (Badkoubehi Decl., ¶10.) As such, although not explicitly stated, it appears that Badkoubehi’s declaration seems to be attesting to his mistake, inadvertence, or excusable neglect. Thus, because this motion was made within the six-month time period, is accompanied by a declaration which discusses that the failure to file a responsive was due to his failure to calendar the deadline, and because there is no opposition filed attesting to otherwise, this Court GRANTS this motion. The Court will discuss at the hearing whether any conditions should be imposed on the granting of the motion, such as payment of Plaintiff’s expenses in applying for the Clerk’s default that is being set aside. Defendant shall file the proposed answer as a stand-alone pleading, not as an exhibit to a declaration or motion, within 15 days.