Judge Ronald F. Frank, Case Number: 24TRCV01055, Date: 2024-10-01 Tentative Ruling

Judge: Ronald F. Frank, Case: 24TRCV01055, Date: 2024-10-01 Tentative Ruling

Case Number: 24TRCV01055 Hearing Date: October 1, 2024 Dept: 8

Tentative Ruling¿

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HEARING DATE: October 1, 2024

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CASE NUMBER: 24TRCV01055

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CASE NAME: EXECUTIVE FINANCIAL ENTERPRISES, INC., a California Corporation, assignee of UNITED PARCEL SERVICE, INC. aka UPS v. CIS INTERNATIONAL HOLDINGS (N.A.) CORP., a California Corporation dba CIS INTERNATIONAL HOLDINGS dba TROPICAL FISH INTERNATIONAL, and DOES 1 through 10

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MOVING PARTY: CIS International Holdings (N.A.) Corp.

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RESPONDING PARTY: Plaintiff (unopposed)

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TRIAL DATE: None

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MOTION:¿ (1) Motion to Set Aside Default

(2) CMC

Tentative Ruling: (1) GRANT; Answer was previously accepted by Clerk’s office despite earlier entry of clerk’s default

(2) Court to discuss case management given that Defendant’s answer has been on file for months

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I. BACKGROUND¿¿

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A. Factual¿¿

Plaintiff Executive Financial Enterprises, Inc. (“Plaintiff”) alleges that its assignor, United Parcel Service, Inc. (“UPS”), provided shipping services to Defendant CIS International Holdings (N.A.) Corp., a California Corporation dba CIS International Holdings adba Tropical Fish International (“Defendant”). (Compl., ¶ 6.) UPS regularly billed Defendant and Defendant promised to pay UPS for those services. (Compl., ¶ 6.) “Although demand for payment of the sum of $285,330.30 has been made upon Defendant(s), and each of them, Defendant(s) and each of them, have failed and refused and continue to fail and refuse to pay all of any part of said sum. The sum of $285,330.30 remains now due, owing and unpaid from Defendant to Plaintiff, together with interest thereon at the rate of 10% per annum from on or after December 26, 2022.” (Compl., ¶ 7.)

B. ¿ Procedural

¿ On March 28, 2024, Plaintiff filed this action against Defendant and Does 1 through 10, inclusive, asserting causes of action for (1) open book account and (2) account stated.

On June 7, 2024, default was entered against Defendant. On June 11, 2024, Defendant filed its Answer, which was accepted for filing even though a default had been entered, evidence that sometimes clerical mistakes occur even in court filings.

On August 30, 2024, Defendant filed a motion to set aside the default.

On September 5, 2024, Defendant refiled its motion to set aside the default (the “Motion”), which is seemingly identical to the one filed on August 30, 2024.

On September 16, 2024, the Court held a Case Management Conference (“CMC”). Plaintiff’s counsel and defense counsel appeared at the CMC. The Court continued the CMC to be on the same date as the hearing on the Motion on October 1, 2024

No opposition has been filed, nor has a stipulation to relieve the clerk’s default.

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¿III. ANALYSIS¿

A. Legal Standard

Under Code of Civil Procedure, section 473, subdivision (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 neglect. (Code Civ. Proc., § 473, subd. (b); English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 143.) 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).)¿

“It is the policy of the law to favor, wherever possible, a hearing on the merits, and appellate courts are much more disposed to affirm an order where the result is to compel a trial upon the merits than they are when the judgment by default is allowed to stand and it appears that a substantial defense could be made. Stated another way, the policy of the law is to have every litigated case tried upon its merits, and it looks with disfavor upon a party, who, regardless of the merits of the case, attempts to take advantage of the mistake, surprise, inadvertence, or neglect of his adversary.” (Weitz v. Yankosky (1966) 63 Cal.2d 849, 854–855.)¿

B. Discussion

As an initial matter, the Court finds the Motion timely as it was made within six (6) months of the entry of the Clerk’s default on June 6, 2024.

Relief under Code of Civil Procedure section 473, subdivision (b) is mandatory when based on an attorney’s affidavit of fault; otherwise, it is discretionary. (English, 94 Cal.App.4th at 143.)

Here, Defendant has met the attorney affidavit requirement for mandatory relief. Defense counsel testifies that because the parties were attempting to resolve the matter informally, she mistakenly believed that Defendant did not need to respond to the Complaint. (Motion, Declaration of Sara D. Fazio, ¶¶ 3-7.) Plaintiff has not filed any opposition to the Motion. The Court finds that Defendant has established that the June 7, 2024, default was entered due to its counsel’s mistake, inadvertence, surprise, or excusable neglect.

Therefore, the request to vacate the default entered on June 7, 2024, is GRANTED.¿

Defendant asks the Court to deem the Answer filed on June 11, 2024, the operative pleading. That request is also GRANTED.

IV. CONCLUSION

Defendant CIS International Holdings (N.A.) Corp., a California Corporation dba CIS International Holdings dba Tropical Fish International’s Motion to Set Aside Default is GRANTED. The default entered on June 7, 2024, is hereby vacated. Defendant’s operative Answer is deemed to be the Answer filed on June 11, 2024. Plaintiff Executive Financial Enterprises, Inc. may file a response to the Answer within 10 days of this ruling.

Defendant to give notice.