Judge: Upinder S. Kalra, Case: 21STCV22977, Date: 2024-06-18 Tentative Ruling
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Case Number: 21STCV22977 Hearing Date: June 18, 2024 Dept: 51
Tentative Ruling
Judge Upinder S. Kalra, Department 51
HEARING DATE: June 18, 2024
CASE NAME: Jessica Davalos, et al. v. Maria Santos Davalos, et al.
CASE NO.: 21STCV22977
MOTION TO SET ASIDE DEFAULT AND DEFAULT JUDGMENT AND TO QUASH ANY WRIT OF EXECUTION
MOVING PARTY: Defendant Maria Santos Davalos
RESPONDING PARTY(S): Plaintiffs Jessica Davalos a/k/a Jessica Davalos-Ruiz and Alejandra Davalos a/k/a Alejandra Davalos-Ruiz
REQUESTED RELIEF:
1. An Order setting aside the Default and Default Judgment and quashing any Writ of Execution.
TENTATIVE RULING:
1. Motion to Set Aside/Vacate Default and Default Judgment is DENIED.
STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:
On June 21, 2021, Plaintiffs Jessica Davalos a/k/a Jessica Davalos-Ruiz and Alejandra Davalos a/k/a Alejandra Davalos-Ruiz filed a complaint against Defendants Maria Santos Davalos d/b/a La Barca de Jalisco Restaurant and La Barca Jalisco Restaurant, Eduardo Davalos, and Does 1 through 100. The complaint alleged ten causes of action: (1) Failure to Pay Applicable Minimum Wage, (2) Unpaid Overtime Wages, (3) Failure to Provide Meal Periods, (4) Failure to Provide Rest Periods, (5) Unreimbursed Business Expenses, (6) Failure to Furnish Complete and Accurate Wage Statements (7) Final Wages Not Timely Paid, (8) Breach of Contract, (9) Breach of Contract, and (10) Violation of California Unfair Business Competition Law. The Complaint alleges that the Plaintiffs worked for the Defendants at their restaurant. During their time there, the Plaintiffs did not receive proper wages for the hours worked, did not receive proper meal breaks and rest periods, and did not receive accurate wage statements.
On September 13, 2021, Defendant Eduardo Davalos filed an Answer.
On September 13, 2021, Defendant Maria Santos Davalos filed an Answer.
On January 10, 2022, Plaintiff Alejandra Davalos filed 6 Motions to Compel.
On January 10, 2022, Plaintiff Jessica Davalos filed 6 Motions to Compel.
On April 12, 2022, the Court continued the hearing to May 13, 2022 for the parties to meet and confer and for Defendant to comply.
On May 13, 2022, the Court granted all 12 motions to compel, ordering Defendants to respond and produce documents within 15 days of entry of the order. Lastly, the Court awarded Plaintiffs $15,000 in monetary sanctions.
On September 26, 2022, Plaintiffs filed a Motion for Terminating Sanctions. Defendants Opposition was filed December 8, 2022. Plaintiffs’ Reply was filed on December 14, 2022.
On December 21, 2022, the Court conducted a hearing on the motion. The Court noted that Defendant had yet to comply with the prior Court order. The Court continued the motion to have Plaintiffs explain what sanctions short of terminating sanctions would provide relief to Plaintiff and to give Defendants additional time to comply with the prior Court orders.
On February 1, 2023, the Court advised the parties that Plaintiff had not filed a separate statement or concise outline as required by Rule of Court, rule 3.1345. The Court continued the motion to have Plaintiffs cure this procedural defect and, once again, to give Defendants additional time to comply with the prior Court orders.
On February 21, 2023, Plaintiffs filed a concise outline in compliance with Rule of Court, rule 3.1345.
On March 14, 2023, Defendants filed declarations denying ownership interest in the restaurant.
On March 15, 2023, the Court granted the Motion for Terminating Sanctions and struck Defendants’ Answers after finding that Defendants’ conduct was willful, preceded by a history of abuse and less severe sanctions would not produce compliance with the twelve prior discovery orders. Thereafter, the Court entered default for both Defendants.
On June 22, 2023, Plaintiffs filed a Request for Default Judgment.
On September 21, 2023, the Court held a live evidentiary hearing pursuant to Local Rule 3.201(b). The Court took the matter under submission.
On December 12, 2023, the Court entered Default Judgment.
On December 20, 2023, Plaintiffs served Notice of Entry of Judgment.
On January 10, 2024, Plaintiffs filed an Abstract of Judgment and Writ of Execution.
On April 18, 2024, Moving Party filed the instant motion, in pro per, to set aside/vacate default and/or default judgment and to quash any writ of execution. Moving Party also filed an ex parte application which the Court denied.
On May 31, 2024, Plaintiffs filed an Opposition.
On June 6, 2024, Defendants filed Substitutions of Attorney.
On June 11, 2024, Moving Party filed a Reply through new counsel.
LEGAL STANDARD:
“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).)¿¿¿
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The court has broad discretion to vacate the entry of default, default judgment or a dismissal, but that discretion can be exercised only if the defendant establishes a proper ground for relief, by the proper procedure and within the set time limits. Pursuant to CCP section 473(b), a motion to set aside/vacate cannot be brought more than 6 months after the entry of default and must be made within a “reasonable time.”¿¿
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CCP section 473(b) provides that when an application for relief is made no more than six months after entry of dismissal and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, the court shall set aside a dismissal entered against the attorney’s 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).) “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.”¿¿
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Where an “attorney¿affidavit of fault” is filed, there is no requirement that the¿attorney's¿mistake, inadvertence, or neglect be excusable. Relief¿must¿be granted even where the default or dismissal resulted from¿inexcusable¿neglect by defendant's¿attorney. (Robert E. Weil, et al., California Practice Guide: Civil Procedure Before Trial ¶ 5:495 (2018).)¿¿
ANALYSIS:
Moving Party contends that the default should be set aside because Plaintiffs willfully sent notices to an office in Chino and not to her counsel and that her own counsel had not told her of the default hearing or proposed judgment. Plaintiffs argue that they properly served notice
throughout the litigation and that Moving Party had knowledge of the status of litigation. Additionally, Plaintiffs argue that counsel’s conduct was inexcusable neglect. Moving Party replies that she detrimentally relied on her counsel’s gross misconduct and extremely incompetent representation.1
As a threshold matter, Moving Party’s request is jurisdictionally time-barred. The default was entered on March 15, 2023 – well outside of the six-month filing period under CCP § 473(b). While the default judgment was entered within the six-month filing period, the underlying default was not. Moving Party did not otherwise challenge the default judgment.
Second, a client is bound by their attorney’s acts for which that attorney is employed. (CCP § 283; Blanton v. Womancare, Inc. (1985) 38 Cal.3d 396, 403.) Indeed, an attorney has authority to bind their client for procedural matters. (CCP § 283(1).) Here, Moving Party is bound to her prior counsel’s acts in furtherance of the employment, namely, the instant litigation. This includes opposing and appearing at the March 15, 2023 hearing on Motion for Terminating Sanctions. Moving Party’s recourse is a malpractice action against her prior counsel – not a motion setting aside the default and default judgment sought here.
Accordingly, the court DENIES Moving Party’s motion to set aside/vacate default judgment.
CONCLUSION:
For the foregoing reasons, the Court decides the pending motion as follows:
1. Motion to Set Aside/Vacate Default and Default Judgment is DENIED.
Moving party is to give notice.
IT IS SO ORDERED.
Dated: June 18, 2024 __________________________________ Upinder S. Kalra
Judge of the Superior Court