Judge: Virginia Keeny, Case: 24STCV21486, Date: 2025-05-07 Tentative Ruling

Case Number: 24STCV21486    Hearing Date: May 7, 2025    Dept: 45

MARCUS GABRIEL WHITTEMORE VS RAMY BARAMILY

defendant’s motion to set aside default

Date of Hearing:        May 7, 2025                                       Trial Date:       None set  

Department:              45                                                        Case No.:        24STCV21486

Moving Party:            Defendant Ramy Baramily

Responding Party:     Plaintiff Marcus Gabriel Whittlemore

BACKGROUND

On August 23, 2024, Plaintiff Marcus G. Whittlemore filed a complaint against Defendant Ramy Baramily for (1) Assault; (2) Battery; (3) Gender Violence in Violation of Civil Code §52.4; (4) Ralphs Civil Rights Act (Violation of Civ. Code §51.7); (5) Interference with Exercise of Civil Rights (Civ. Code §52.1); and (6) Intentional Infliction of Emotional Distress. Plaintiff alleges Defendant punched Plaintiff when Plaintiff, acting on behalf of his client in another civil matter, arranged for the return of approximately 200 electric scooters to that client and the client’s business associate. Plaintiff alleges this occurred after Plaintiff observed Defendant and his employees attempting to take the scooters and confronted Defendant on the issue.

On January 28, 2025, the request for entry of default was entered against Defendant.

[Tentative] Ruling

Defendant’s Motion to Set Aside Default is GRANTED.

DISCUSSION

Defendant Ramy Baramily moves the court for an order setting aside the default entered on January 28, 2025.

Code of Civil Procedure section 473(b)¿provides for two distinct types of relief -- commonly differentiated as “discretionary” and “mandatory” -- from a default.  “Under the¿discretionary relief provision, on a showing of ‘mistake, inadvertence, surprise, or¿excusable neglect,” the court has discretion to allow relief from default.  Under the mandatory relief provision, on the other hand, upon a showing by attorney declaration of ‘mistake, inadvertence, surprise, or neglect,’ the court shall vacate any ‘resulting default judgment or dismissal entered.’”  (Leader v. Health Industries of America, Inc.¿(2001) 89 Cal.App.4th 603, 615-616.)¿ 

Applications seeking relief under the mandatory provision of¿§473¿must be “accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect.” (CCP §473(b).)  The mandatory provision further adds that “whenever relief is granted based on an attorney’s affidavit of fault [the court shall] direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties.” (CCP §473(b).)  The application for relief must be made no more than six months after entry of judgment.  (CCP §473(b).)  And the application must be “accompanied by a copy of the answer or other pleading proposed to be filed therein”.  (CCP §473(b).) 

“It is settled that the law favors a trial on the¿merits. . . and therefore liberally construes¿section¿473.”  (Bonzer v. City of Huntington Park (1993) 20 Cal.App.4th 1474, 1477.)  “Doubts in applying¿section 473 are resolved in favor of the party seeking¿relief from¿default. . . and if that party has moved promptly for¿default relief,¿only slight evidence will justify an order granting such¿relief.”  (Id. at 1477-78.)

Defendant argues his failure in responding to the complaint was taken through mistake, inadvertence, surprise, and/or excusable neglect because Baramily’s counsel was never notified of the existence of the action by Plaintiff. (See Fasuyi v. Permatex, Inc. (2008) 167 Cal.App.4th 681, 701 holding a plaintiff’s attorney has an ethical obligation to warn a defendant before moving for default, where the plaintiff knows that defendant is represented by counsel.) Instead, Baramily’s counsel discovered the existence of this action himself despite Plaintiff being aware that Baramily had counsel as Plaintiff represents Hussein Sidky, in an action involving Baramily. Defendant argues neither the proof of service nor the request for entry of default were served on Counsel. (Sterling Decl. ¶4.)

In opposition, Plaintiff argues the Sidky matter is wholly separate and distinct and if Defendant did have counsel representing him in the instant matter at that time, such representation was never communicated to Plaintiff. Moreover, Plaintiff argues Defendant has not explained how the default was entered against him due to mistake, surprise, inadvertence, or excusable neglect. Instead, Plaintiff has shown Defendant was properly served in this matter by substitute service after multiple attempts were made to serve him personally. (Whittlemore Decl. Exh. A B.) Moreover, Defendant has not explained the lack of diligence in filing the motion for relief. Entry of Default was entered in January and Defendant waited until April to file the instant motion.

In the interest of fairness and justice, this court grants Defendant’s motion to set aside entry of default. Absent prejudice to the plaintiff and diligence by the defendant, only “very slight” evidence is needed to set aside a default.  (Fasuyi v. Permatex, Inc. (2008) 167 Cal.App.4th 681, 695, quoting McCormick v. Board of Supervisors (1988) 198 Cal.App.3d 352, 359-360.) As a preliminary matter, Defendant’s motion is timely as it was filed less than three months after default was entered. No default judgment has been entered. Along with their motion, Defendant has filed an answer, which substantially complies with the requirements for relief under the statute.  (CCP §473(b); see Carmel, Ltd. v. Tavoussi (2009) 175 Cal.App.4th 393, 403 [finding substantial compliance where counsel offered proposed answer at motion hearing rather than serving it with moving papers].) Defendant has also sufficiently shown Defense counsel was unaware that the complaint had been served and therefore, his failure to respond resulted from inadvertence and excusable neglect.

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