Judge: Theresa M. Traber, Case: 20STCV18521, Date: 2024-03-26 Tentative Ruling

Case Number: 20STCV18521    Hearing Date: March 26, 2024    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     March 26, 2024                      TRIAL DATE: NOT SET

CASE:                         Luicila Leon v. Concord Farms Inc. et al.

CASE NO.:                 20STCV18521           

MOTION TO SET ASIDE DEFAULT

MOVING PARTY:               Defendant OSI Staffing, Inc.

RESPONDING PARTY(S): Plaintiff Lucila Leon

CASE HISTORY:

·         05/15/20: Complaint filed.

·         08/16/22: First Amended Complaint filed.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

            This is a wrongful termination and employment discrimination action. Plaintiff alleges that Defendants refused to accommodate Plaintiff for a work-related injury and terminated her for pursuing accommodations.

Defendant OSI Staffing, Inc. moves to set aside the default entered against it under Code of Civil Procedure section 473.5.

TENTATIVE RULING:

Defendant OSI Staffing, Inc.’s Motion to Set Aside Default is GRANTED.

            Defendant is ordered to file and serve on all parties a clean, standalone copy of its proposed answer within five days of this order.

DISCUSSION:

Defendant OSI Staffing, Inc. moves to set aside the default entered against it under Code of Civil Procedure section 473.5.

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Legal Standard

Code of Civil Procedure section 473.5 provides that, “[w]hen service of a summons has not resulted in actual notice to a party in time to defend the action and a default . . . has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default . . . and for leave to defend the action.” The notice must be served and filed “within a reasonable time, but in no event exceeding . . . 180 days after service on him or her of a written notice that the default . . . has been entered.” (Code Civ. Proc. § 473.5(a) [emphasis added].) Upon a finding by the Court that “the motion was made within the period permitted by subdivision (a) and that his or her lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect, it may set aside the default . . . on whatever terms as may be just and allow the party to defend the action.” (Code Civ. Proc. § 473.5(c).) “Actual notice” under this statute means “genuine knowledge of the party litigant,” and not “constructive notice” or “imputed notice.” (Rosenthal v. Garner (1983), 142 Cal. App. 3d 891, 895.)

Timeliness

            Defendant contends that this motion is timely because written notice of entry of default was never served on Defendant. Defendant’s CEO, Jose Vazquez, states under penalty of perjury that he did not become aware of the entry of default judgment until February 15, 2024. (Declaration of Jose Vazquez ISO Mot. ¶ 5.). An examination of the Court’s records reveals that no proof of service regarding the entry of default is on file, only a proof of service for the request for entry of default filed by Plaintiff on July 20, 2023. (See Declaration of Samantha Ortiz ISO Opp. Exh. K.) Construing these facts in the light most favorable to the moving parties, as required on this motion, the Court finds that Defendant was not served with notice of entry of default. Thus, Defendant’s motion is timely.

Actual Notice

            Defendant contends that it never received actual notice of the action because it was never served with the Summons and Complaint. The proof of service filed with the Court on March 15, 2023, states that Defendant was served by substituted service, leaving the documents with Jade Cervantez, a Human Resource Assistant, on March 13, 2023, at Defendant’s business address of 10913 La Reina Ave Ste B Downey, CA and thereafter mailing a copy of the summons and complaint on March 14 to that same address. (March 15, 2023 Proof of Service on Defendant OSI Staffing.) Mr. Vazquez categorically states that he never received these documents, and Defendant has no record of these documents being served on that date. (Vazquez Decl. ¶ 2.) Mr. Vazquez also states that Defendant has no recollection of receiving the request for entry of default filed on July 20, 2023, and Defendant likewise has no record of this filing. (¶ 3.) Defendant suggests that Plaintiff has a history of confusing Defendant OSI Staffing with the now-terminated entity Opportunity Staffing, Inc. and of serving that Defendant at the moving Defendant’s address. In particular, Defendant emphasizes that Plaintiff’s Default Package does not identify OSI Staffing nor list its address on Plaintiff’s proof of service. (See September 22, 2023 Proof of Service by Mail.)

            In opposition, Plaintiff contends that Defendant was properly served and asserts that its lack of knowledge is the result of inexcusable neglect. Plaintiff offers no evidence that would rebut the sworn testimony of Defendant’s personnel that they had no knowledge of the pending action until they received the proposed default judgment in February. In light of the strong presumption in favor of litigation on the merits, the Court finds that Defendant is entitled to an order setting aside the default on this basis.

Plaintiff also requests an award of attorney’s fees if the Court is inclined to set aside the default. The Court does not think it appropriate to award attorney’s fees where the basis for setting aside the default is a failure to place the defaulting party on actual notice of the action. 

CONCLUSION:

            Accordingly, Defendant OSI Staffing, Inc.’s Motion to Set Aside Default is GRANTED.

            Defendant is ordered to file and serve on all parties a clean, standalone copy of its proposed answer within five days of this order.

            Moving Party to give notice.

IT IS SO ORDERED.

Dated:  March 26, 2024                                  ___________________________________

                                                                                    Theresa M. Traber

                                                                                    Judge of the Superior Court

            Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.