2011-00099085-CU-BT

Eric Lopez vs. Hugo Guzman Cervantes

Nature of Proceeding:   Motion to Set Aside Defaults

Filed By:  Lopez, Virginia and Garcia, Antonio

The motion of Defendants Virginia Lopez and Antonio Garcia (“Moving Defendants”)
for relief from default pursuant to CCP § 473(b) is GRANTED.

This case presents a business dispute.  In March 2011, Plaintiffs Eric Lopez and
Araceli Chaveste (“Plaintiffs”) sued non-moving Defendants Hugo G. Cervantez (“H.
Cervantez”) and Alicia Cervantez after disagreements arose in connection with the
foursome’s venture as co-owners of a restaurant.  Moving Defendants evidently were
employees at the restaurant and were not named in the original complaint.  It appears
that, after the partnership among Plaintiffs and the non-moving defendants failed, the
landlord of the partnership’s restaurant facility approached Moving Defendants, and
Moving Defendants began operating the restaurant in their own names.  When
Plaintiffs learned that Moving Defendants had become owners of the restaurant, they
named Moving Defendants as defendants previously identified as DOES.  The only
allegations directed against Moving Defendants are Plaintiffs’ general allegations that
each defendant acted as the other’s agent and that each fictitiously named defendant
was somehow responsible for the injuries alleged.

Plaintiffs served Moving Defendants with the summons, complaint and DOE
amendments in November 2012.  Moving Defendants did not file any responsive
pleadings, and Plaintiffs obtained Moving Defendants’ defaults in September 2013.
Defendants now move for relief from default on grounds that (1) they did not
understand what actions they were required to take, (2) when they contacted co-
defendant H. Cervantez to inquire about the documents with which they were served,
he told them that he did not understand why they been named in the lawsuit and that
he would try to protect them from any legal claims, and thus they mistakenly believed
that H. Cervantez “would take care of the lawsuit on [their] behalf… ,” (Moving Memo.
at 3:14-20), and (3) because H. Cervantez was their former employer, Defendants
mistakenly believed that he was under a duty to defend them in the lawsuit.

In its discretion, the court GRANTS relief on grounds of mistake and/or excusable
neglect.  Moving Defendants are not sophisticated in legal affairs, the allegations in the
complaint do not identify Moving Defendants by name (thus making it difficult for
Moving Defendants to understand why they were served), and H. Cervantez indicated
that he would protect their rights.  Moreover, the law strongly favors trials on the merits
over forfeitures of legal rights.  (See Maynard v. Brandon (2005) 36 Cal.4th 364, 371-
372.)  As a result, all doubts about granting discretionary relief under CCP § 473(b)
must be resolved in favor of granting relief.  (Id.)  Under the circumstances, the court
grants the relief requested.

In concluding that relief is warranted, the court rejects Plaintiffs’ argument that,
because Moving Defendants failed to file a responsive pleading an entire year before
their defaults were entered, and because they waited three months before bringing the
instant motion once they learned their defaults had been entered, discretionary relief
should be denied.  Even if Moving Defendants could have been more diligent, the
totality of circumstances and policy favoring trials on the merits render an order
granting relief appropriate.

The court rejects Plaintiffs’ further argument that, given the prospect that the current
trial date (04/22/14) might have to be continued if Moving Defendants are permitted to
defend, an order granting discretionary relief will unduly prejudice Plaintiffs.  There is
still time to undertake discovery before the current trial date, and the case is not yet
three years old.  Whether or not the trial is ultimately continued, the court discerns no
prejudice compelling the denial of relief from default.

Conclusion

The defaults of Moving Defendants (Virginia Lopez and Antonio Garcia) are
VACATED.

No later than January 17, 2014, Moving Defendants may file and serve their joint
proposed answer with the civil filing clerk.  The court will not file the joint proposed
answer submitted with the motion for relief from default.

The minute order is effective immediately.