Judge: Rupert A. Byrdsong, Case: 23STCV22493, Date: 2025-01-16 Tentative Ruling

Case Number: 23STCV22493    Hearing Date: January 16, 2025    Dept: 28

Tentative Ruling

Judge Rupert A. Byrdsong

Department 28

Hearing Date:                                  January 16, 2025          

Case Name:                                      Glasby v. Dutch Apparel, LLC

Case No.:                                           23STCV22493

Motion:                                              Set Aside Entry of Default

Moving Party:                                 Dutch Apparel, LLC  

Responding Party:                         Unopposed

Notice:                                                OK

Recommended Ruling:               Defendants’ motion to set aside entry of default is DENIED.

BACKGROUND

On September 18, 2023, Plaintiff Hannah Glasby (“Plaintiff”) filed a complaint against Dutch Apparel, LLC (“Defendant”) and Does 1 through 50. Plaintiff alleged causes of action for (1) nonpayment of wages and (2) waiting time penalties under Labor Code Section 203.

Plaintiff alleges that Defendant employer her as a model for a still image shoot on January 25, 2022. Plaintiff claims her wages for the shoot were $2,500.00. Allegedly, Defendant failed to timely pay Plaintiff for her work as a model. Accordingly, Plaintiff seeks statutory damages for the nonpayment of wages and for waiting time penalties.

Plaintiff personally served Defendant on October 22, 2023. The Clerk entered default against Defendant on May 7, 2024. Defendant now moves to set aside entry of default.

MOVING PARTY POSITION

Defendant argues that setting aside default is mandatory in this case because Defendant’s counsel erred and has attached an affidavit to this motion explaining counsel’s mistake, inadvertence, surprise, or excusable neglect. Defendant’s counsel attests that he believed that the case was at issue because the eCourt system accepted Defendant’s answer in this matter for filing, signifying to counsel that the default had been vacated. Further, counsel states that he would have learned of this error at the case management conference on September 30, 2024, but counsel’s office recently changed practice management software systems, and the case management conference, as well as other hearings, were deleted from counsel’s calendar. Counsel urges the Court that Defendant should not be punished for counsel’s error.

OPPOSITION

No opposition filed as of 1/13/2024.

REPLY

No reply filed as of 1/13/2024.

ANALYSIS

“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.”  Code Civ. Proc., § 473(b).  “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).

“[T]he court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.”  Code Civ. Proc., § 473(b).

Section 473 “is remedial in its nature and is to be liberally constructed.”  Reed v. Williamson (1960) 185 Cal.App.2d 244, 248. The statute’s purpose “is to promote the determination of actions on their merits.”  Even Zohar Const. & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 839. “Even in a case where the showing under [CCP § 473] is not strong, or where there is any doubt as to the setting aside of a default, such doubt should be resolved in favor of the application.”  Reed, supra, 185 Cal.App.2d at 249. 

Here, the Clerk entered default against the Defendant on May 7, 2024, but Defendant did not file the motion to set aside entry of default until December 18, 2024. Defendant’s motion is beyond the six-month period laid out in Code of Civil Procedure Section 473(b). When a motion to set aside default is untimely under Section 473(b), statutory relief is not available. Mason, Iver & York v. Black (2009) 176 Cal.App.4th 36, 42.

However, Defendant can still seek to set aside the entry of default on equitable grounds. Id. Equitable relief to set aside entry of default is only available in exceptional circumstances. Luxury Asset Lending, LLC v. Philadelphia Television Networks, Inc. (2020) 56 Cal.App.5th 894, 910. “To set aside a judgment based on extrinsic fraud or extrinsic mistake, the moving party must satisfy three elements: ‘First, the defaulted party must demonstrate that it has a meritorious case. Secondly, the party seeking to set aside the default must articulate a satisfactory excuse for not presenting a defense to the original action. Lastly, the moving party must demonstrate diligence in seeking to set aside the default once it had been discovered.’” Id. at 911 (internal citations and quotations omitted).

The issue here is that Defendant has not made any arguments regarding equitable relief. Defendant has not demonstrated exception circumstances, fraud, or mistake. Thus, the Court cannot, on its own, set aside entry of default in this matter on equitable grounds. The parties may stipulate to setting aside entry of default.

CONCLUSION

For the reasons stated above, Defendant’s motion to set aside entry of default is DENIED.