Judge: Timothy B. Taylor, Case: 37-2022-00048664-CU-WT-CTL, Date: 2023-08-25 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - August 24, 2023

08/25/2023  01:30:00 PM  C-72 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Timothy Taylor

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Civil - Unlimited  Wrongful Termination Motion to Dismiss 37-2022-00048664-CU-WT-CTL VILLAGOMEZ VS SCENT OF HEAVEN LLC [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Set Aside Default, 05/22/2023

Tentative Ruling on Motion to Set Aside Default Villagomez v. Zatarain, Case No. 2022-48664 August 25, 2023, 1:30 p.m., Dept. 72 1. Overview and Procedural Posture.

This is an employment case in which plaintiff alleges she was wrongfully terminated by defendants (who allegedly also did not comply with wage and hour laws). Defendants provide cleaning services targeting short-term rental properties, and plaintiff cleaned these units, ostensibly as an 'independent contractor.' The complaint was filed December 5, 2022. Three defendants were served with the summons and complaint in December, and again in February and March of 2023. ROA 8-12, 15. A fourth defendant (Airhost) was the subject of a 'doe' amendment in March and was served later that month. ROA 13-14.

When no defendant filed a responsive pleading, all four were defaulted on April 27, 2023.* ROA 16-17.

Presently, defendants seek an order setting aside the defaults. ROA 26-27. Zatarain (the only declarant) claims excusable neglect and cites Code of Civil Procedure section 473. She claims she has been unsuccessfully attempting to retain counsel, notwithstanding the fact that someone with legal training assisted in preparing the moving papers and proposed responsive pleadings.** Plaintiff filed opposition. ROA 28-30. Zatarain filed reply. The court has reviewed the papers and no further submissions are authorized in connection with this motion.

2. Applicable Standards.

Code of Civil Procedure section 473(b) provides two distinct provisions for relief from default. Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 838. One affords discretionary relief, and the other makes relief mandatory. Defendants have expressly invoked the former, which provides that '[t]he 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). To obtain discretionary relief under section 473, the moving party must show the requisite mistake, inadvertence, or excusable neglect. McClain v. Kissler (2019) 39 Cal.App.5th 399, 414. '[F]or relief on Calendar No.: Event ID:  TENTATIVE RULINGS

2976035  61 CASE NUMBER: CASE TITLE:  VILLAGOMEZ VS SCENT OF HEAVEN LLC [IMAGED]  37-2022-00048664-CU-WT-CTL any or all of the stated grounds it must be shown that one's misconception was reasonable, or that it might have been the conduct of a reasonably prudent person under similar circumstances.' Shaddox v. Melcher (1969) 270 Cal.App.2d 598, 601.

3. Discussion and Ruling.

The motion to set aside the defaults is denied.

A. With respect to defendants Airhost and Scent of Heaven, the motion is denied on grounds that they are not represented by licensed counsel. As limited liability companies, defendants cannot appear in court in propria persona, nor can they be represented by a corporate officer, director, or other employee who is not an attorney. CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1146.

B. For similar reasons, the motion is also denied as to defendant Ochoa. He neither signed the moving papers nor provided a declaration regarding his alleged excusable neglect. Indeed, from all that appears, Zatarain (who declares she is not a lawyer) is seeking to represent Ochoa in this litigation.

(See Zatarain Decl., ¶¶ 2-3.) This she may not do. 'The general American rule is that an unlicensed person cannot appear in court for another person[.]' Russell v. Dopp (1995) 36 Cal.App.4th 765, 774.

C. As for defendant Zatarain, the motion is denied because she has failed to make a sufficient showing of mistake, inadvertence, surprise, or excusable neglect. Zatarain contends that she mistakenly believed she would have more time to retain an attorney. Putting aside that Zatarain does not explain why she held this belief, the evidence before the court is to the contrary. First, the summons that was served on her in December 2022 and February 2023 makes clear that she had just 30 days to respond: 'NOTICE! You have been sued. The court may decide against you without your being heard unless you respond within 30 days. Read the information below. You have 30 CALENDAR DAYS after this summons and legal papers are served on you to file a written response at this court and have a copy served on the plaintiff. A letter or phone call will not protect you. Your written response must be in proper legal form if you want the court to hear your case. There may be a court form that you can use for your response.' Second, though he had no legal obligation to do so (Bellm v. Bellia (1984) 150 Cal.App.3d 1036, 1038), plaintiff's counsel notified Zatarain via text message in mid-April that she had not filed a responsive pleading and that she needed to do so 'within the next week' or he would take her default. (Larabee Decl., Ex. D.) Zatarain, however, did not respond to plaintiff's counsel or file any sort of responsive pleading. As such, plaintiff's counsel sent another text message two weeks later stating that plaintiff would be moving forward with the default. (Larabee Decl., ¶ 7; Ex. E.) Zatarain merely laughed in response. (Larabee Decl., Ex. F.) Her default was entered the next day. ROA 17.

In light of the foregoing, the court finds that the default did not result from Zatarain's mistake, inadvertence, or excusable neglect. Rather, it was the clear consequence of her failure to exercise ordinary and reasonable prudence to avoid that result. While the court recognizes that Zatarain is self-represented, her status as a party appearing in propria persona does not allow for preferential consideration. Elena S. v. Kroutik (2016) 247 Cal.App.4th 570, 574. She is not entitled to special exemptions from the California Rules of Court or Code of Civil Procedure. Gamet v. Blanchard (2001) 91 Cal.App.4th 1276, 1284. Nor is she relieved of 'the duty of every party desiring to resist an action or to participate in a judicial proceeding to take timely and adequate steps to retain counsel or to act in his own person to avoid an undesirable judgment.' Elms v. Elms (1946) 72 Cal.App.2d 208, 513.

Accordingly, her motion to set aside the default is denied.

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2976035  61 CASE NUMBER: CASE TITLE:  VILLAGOMEZ VS SCENT OF HEAVEN LLC [IMAGED]  37-2022-00048664-CU-WT-CTL *The moving papers claim an answer and demurrers were tendered to the court and stricken. See ROA 24 for the real story.

**Apparently, from the proof of service, 'Brent Parks' in Cherry Valley, CA.

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