Judge: Stephanie M. Bowick, Case: 21STCV32772, Date: 2024-11-19 Tentative Ruling
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Case Number: 21STCV32772 Hearing Date: November 19, 2024 Dept: 19
CRUZ v. MARQUEZ
SUPPLIES & INSTALLATION, INC.
TENTATIVE RULING
The Court signs the proposed order filed on May 13, 2024 after striking ¶ 3.
The Court sets a Non-Appearance Case Review Re: Filing of Motion for Leave to Amend Second Amended Complaint for March 14, 2025 at 10:00 A.M. in Department 19 of the Stanley Mosk Courthouse.
Counsel for Plaintiff is ordered to reserve a hearing for the motion and to file the motion papers by February 28, 2025. A failure to do so will result in the Court setting an Order to Show Cause Re: Why This Action Should Not Be Dismissed For Delay of Prosecution (Code of Civ. Proc. sections 583.420 and 585).
Service of notice of this order on Defendants not required under the circumstances. (Code Civ. Proc., § 1010.)
STATEMENT OF THE CASE
This is an employment dispute action. In the Second
Amended Complaint (“SAC”), Plaintiff Pedro Cruz (“Plaintiff”) brings suit
against Defendants Marquez Supplies and Installation, Inc. d/b/a Marquez Wood
Floors (“Marquez Supplies”) and Roman Marquez (“Marquez”) (collectively,
“Defendants”) alleging the following causes of action:
1. Wrongful Termination In Violation Of
Public Policy;
2. Retaliation (Labor Code §98.6);
3. Retaliation For Disclosing Violations
Of Law (Labor Code §§ 1102.5, 1102.6);
4. Failure To Pay Wages;
5. Failure To Pay Minimum Wages (Cal.
Labor Code §§1182.12, 1194, 1194.2, 1197);
6. Failure To Pay Overtime Compensation
(Cal. Labor Code §§510, 1194);
7. Failure To Provide Rest Periods (Lab.
Code §§226.7, 512);
8. Failure To Provide Itemized Wage
Statements (Cal. Labor Code §§226 Et Seq.);
9. Failure To Indemnify (Cal. Labor Code
§2802);
10. Waiting Time Penalties (Cal. Labor
Code §§201-203); and
11. Unfair Competition (Cal. Bus. &
Prof. Code §17200 Et Seq.
On February 15, 2023, Defendant Marquez’s default was entered.
On May 17, 2023, Defendant Marquez Supplies’s default was entered.
On May 13, 2024, Plaintiff filed the instant Motion to Set Aside Default (the “Motion”).
GROUNDS FOR MOTION
Pursuant to Code of Civil Procedure section 473,
subdivision (b) and Code of Civil Procedure section 128, subdivision (a)(8),
Plaintiff moves for an order setting aside the defaults entered against
Defendants on the ground that Plaintiff need to file an amended complaint to
correct defects with the SAC.
DISCUSSION
I.
Code of Civil Procedure Section 473(b)
A. Legal Standards
It is well established that Code of Civil Procedure section 473 is remedial, and its provisions to be liberally construed so as to dispose of cases upon their merits. (See, e.g., Laguna Village, Inc. v. Laborers' Internat. Union of North America (1983) 35 Cal.3d 174, 182; Taliaferro v. Taliaferro (1963) 217 Cal.App.2d 216, 220.)
Code of Civil Procedure section 473, subdivision (b) consists
of two distinct parts: “a discretionary provision, which applies permissively,
and a mandatory provision, which applies as of right.” (Minick v. City of
Petaluma (2016) 3 Cal.App.5th 15, 25-26; Bailey v. Citibank, N.A.
(2021) 66 Cal.App.5th 335, 348.)
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(b).)
The mandatory provision of Code of Civil Procedure section 473, subdivision (b) provides as follows:
Notwithstanding any other requirements
of this section, the 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. The court shall, whenever relief is granted based on an attorney’s
affidavit of fault, direct the attorney to pay reasonable compensatory legal
fees and costs to opposing counsel or parties. However, this section shall not
lengthen the time within which an action shall be brought to trial pursuant to
Section 583.310.
(Code Civ. Proc., § 473(b).)
It is the moving party’s burden “to demonstrate ‘that due to some mistake, either of fact or of law, of himself or of his counsel, or through some inadvertence, surprise or neglect which may properly be considered excusable, the judgment or order from which he seeks relief should be reversed.’” (Hopkins & Carley v. Gens (2011) 200 Cal.App.4th 1401, 1410 (citing Kendall v. Barker (1988) 197 Cal.App.3d 619, 623–624).)
“Under the traditional discretionary provisions of section 473, a party seeking relief on the basis of its attorney's neglect must show that the neglect was excusable.” (Metropolitan Service Corp. v. Casa de Palms, Ltd. (1995) 31 Cal.App.4th 1481, 1486–1487.) However, “[a]n entirely different standard exists under the mandatory relief provisions,” and “require the court to grant relief if the attorney admits neglect, even if the neglect was inexcusable.” (Id. at 1487 (citing Beeman v. Burling (1990) 216 Cal.App.3d 1586, 1603).)
“Relief can only be granted under the mandatory provision… if relief could have been granted under the discretionary provision.” (Minick, supra, 3 Cal.App.5th at 26 (citing Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 681).) If the requirements of the mandatory provision are met, then relief is mandatory. (Lorenz v. Commercial Acceptance Ins. Co. (1995) 40 Cal.App.4th 981, 989.)
Pursuant to the mandatory provision of Code of Civil Procedure section 473, subdivision (b), a party is not entitled to relief if “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).) This provision tests both the credibility of the declaration and the causation of the default. (Milton v. Perceptual Develop. Corp. (1997) 53 Cal.App.4th 861, 866-867.)
“Because the law favors disposing of cases on their merits, ‘any doubts in applying section 473 must be resolved in favor of the party seeking relief from default. Therefore, a trial court order denying relief is scrutinized more carefully than an order permitting trial on the merits.’” (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980 (quoting Elston v. City of Turlock (1985) 38 Cal.3d 227, 233, superseded by statute on other grounds as stated in Wilcox v. Birtwhistle (1999) 21 Cal.4th 973, 979) (internal citation omitted).)
B. Analysis
Here, the Court cannot grant the requested relief
pursuant to Code of Civil Procedure section 473, subdivision (b) because the
instant Motion was filed more than six (6) months after the entry of
Defendants’ defaults. (See Jimenez v. Chavez (2023) 97 Cal.App.5th 50,
59-63 [the six-month period specified in Code of Civil Procedure section 473,
subdivision (b) is either 182 days or six calendar months, whichever period is
longer].)
II. Code of Civil Procedure Section 128(a)(8)
Plaintiff also moves to set aside Defendants’ defaults pursuant to Code of Civil Procedure section 128, subdivision (a)(8).
Code of Civil Procedure section 128, subdivision (a)(8) provides that the Court “shall have the power… [t]o amend and control its process and orders so as to make them conform to law and justice.” (Code Civ. Proc., § 128(a)(8).)
Since Plaintiff does not wish to proceed on the SAC and instead will seek to proceed by way of obtaining leave to file a Third Amended Complaint, thereby opening up Defendants’ defaults, the Court, pursuant to Code of Civil Procedure section 128, subdivision (a), GRANTS Plaintiff’s request to vacate Defendants’ defaults.
The Court sets a Non-Appearance Case Review Re: Filing of
Motion for Leave to Amend Second Amended Complaint for March 14, 2025, at 10:00
A.M. in Department 19 of the Stanley Mosk Courthouse.