2018-00228477-CU-OE

Enoh Mihai vs. Restoration Specialists, Inc.

Nature of Proceeding: Motion for Relief from Default

Filed By: Sundar, Tina

Defendant Restoration Specialists Inc.’s (“Restoration Specialists” or “Defendant”)

Motion for Relief from Default is unopposed and is GRANTED.

This case involves claims by Plaintiff Enoh Mihai (“Plaintiff”) against his former employer, Restoration Specialists, and three of its alleged managers. This action was filed on March 6, 2018. According to the proof of service, Plaintiff represents that he served Restoration Specialists, Inc. on March 9, 2018. On April 10, 2018 – the first day for requesting default – Plaintiff filed a Request for Entry of Default as to Restoration Specialists.

However, according to the declarations filed in support of the instant motion, Restoration Specialists did not receive actual notice of the action until June 1, 2018, and upon learning of the action, it promptly took steps to retain legal counsel. Only after Restoration Specialists attempted to file what it believed was a timely General Denial did it learn that default had been entered.

Specifically, Restoration Specialists did not learn that the pleading had been served on its agent for service of process because of an “estranged” mother-daughter relationship between the agent for service of process (mother Debbie Calabrese) and Restoration Specialist’s principal (daughter Joanna Pacheco), such that the principal did not receive actual notice of the lawsuit until June 1, 2018, when she was served at her personal address. (Declaration of Joanna Pacheco ¶¶ 1-8.) Joanna Pacheco then promptly contacted legal counsel and attempted to file a General Denial on June 25, 2018. By that time, however, default had been entered as against Restoration Specialists. (Id.)

Restoration Specialist’s previous Motion for Relief from Default was denied due to failure to attach the proposed Answer/General Denial to the moving papers. The instant motion properly includes a copy of the proposed responsive pleading.

Pursuant to California Code of Civil Procedure Section 473(b), Restoration Specialists requests that the default be set aside and that it be allowed to appear in this action and appropriately respond to the Complaint. This motion is made on the basis that Restoration Specialists’ failure to respond to the Complaint was the result of mistake of fact and/or excusable neglect.

The motion is unopposed. The Court construes the lack of any opposition as a concession as to the merits of the moving papers.

Moreover, Code of Civil Procedure Section 473 is to be liberally applied where the party in default moves promptly to seek relief, and the party opposing the motion will not suffer prejudice if relief is granted. (Berri v. Rogero (1914) 168 Cal. 736.) In such situations, “very slight evidence will be required to justify a court in setting aside the default.” (Id. at 740.) Because the law strongly favors trial and disposition of cases on the merits, any doubts in applying section 473 must be resolved in favor of the party seeking relief from default. (Waite v. Southern Pacific Co. (1923) 192 Cal. 467; Maynard v. Brandon (2005) 36 Cal. 4th 364, 371-372.)

The Court finds sufficient evidence to support relief from entry of a default based upon mistake, inadvertence, surprise and/or excusable neglect and no prejudice to Plaintiff. Restoration Specialists’ Motion for Relief from Default is unopposed and is GRANTED. The clerk’s entry of default (Register of Actions Nos. 7-8) is ordered VACATED.

Restoration Specialists shall file and serve their General Denial (Exh. C to Pacheco Decl.) not later than November 13, 2018. The exhibits attached to the motion papers are not sufficient for the Court records.

This minute order is effective immediately. No formal order nor further notice is required, the tentative ruling providing sufficient notice.