2017-00211770-CU-PO

Linda Coleman vs. AT&T Corp.

Nature of Proceeding: Motion to Dismiss

Filed By: Forni, Jacqueline V.

Specially Appearing Defendant Sheenal Chandra’s (“Chandra”) motion to dismiss, or in the alternative, motion to set aside default is ruled upon as follows.

This is an action for assault, intentional infliction of emotional distress and violation of the Bane Act. Plaintiff Linda Coleman alleges that she was at a My Wireless store when Chandra, an employee, made racists comments about her and threw a remote control device at her.

Chandra’s default was entered on 3/29/2018 (ROA 19). Default judgment has not been entered.

1. Motion to Dismiss

The Court declines to dismiss the action. Until default has been set aside no motions by the defaulting party may be filed. The clerk’s entry of default cuts off the defendant’s right to take further affirmative steps such as filing a pleading or motion, and the defendant is not entitled to notices or service of pleadings or papers. (Sporn v. Home Depot USA, Inc. (2005) 126 Cal. App. 4th 1294, 1301.)

2. Motion for Relief from Default

Chandra moves for relief based on the Servicemembers Civil Relief Act, 50 U.S.C.

App. §3901 et seq. and CCP §437.

a. Servicemembers Civil Relief Act

50 USCS § 3931(g) provides:

(1) Authority for court to vacate or set aside judgment. If a default judgment is entered in an action covered by this section against a servicemember during the servicemember’s period of military service (or within 60 days after termination of or release from such military service), the court entering the judgment shall, upon application by or on behalf of the servicemember, reopen the judgment for the purpose of allowing the servicemember to defend the action if it appears that-

(A) the servicemember was materially affected by reason of that military service in making a defense to the action; and

(B) the servicemember has a meritorious or legal defense to the action or some part of it.

Although default judgment has not been entered, Chandra seeks relief because she is a member of the army reserve. On February 10, 2018 and March 9-11, 2016, Chandra had to report to her unit for training including mandatory quarterly training duty. Default was entered in 3/29/2018, within the 60 days of her training.

Plaintiff opposes, arguing that 50 USCS § 3931(g) does not apply to Chandra. The Court agrees with Plaintiff.

The following definitions show that Chandra’s membership in the army reserve and her training requirements do not place her within the protections of 50 USCS § 3931(g).

“Military service” means-

(A) in the case of a servicemember who is a member of the Army, Navy, Air Force, Marine Corps, or Coast Guard-

(i) active duty, as defined in section 101(d)(1) of title 10, United States Code, and

(ii) in the case of a member of the National Guard, includes service under a call to active service authorized by the President or the Secretary of Defense for a period of more than 30 consecutive days under section 502(f) of title 32, United States Code, for purposes of responding to a national emergency declared by the President and supported by Federal funds.

(50 USCS § 3911(2) [emphasis added].)

“Active duty” means full-time duty in the active military service of the United States. Such term includes full-time training duty, annual training duty, and attendance, while in the active military service, at a school designated as a service school by law or by the Secretary of the military department concerned. Such term does not include full-time National Guard duty.

(2) The term “active duty for a period of more than 30 days” means active duty under a call or order that does not specify a period of 30 days or less.

(3) The term “active service” means service on active duty or full-time National Guard duty.

(4) The term “active status” means the status of a member of a reserve component who is not in the inactive Army National Guard or inactive Air National Guard, on an inactive status list, or in the Retired Reserve.

(10 USCS § 101(d)(1) [emphasis added].)

Moreover, the California Military and Veterans Code defines “military service” as

full-time active state service or full-time active federal service, as defined in paragraph (1) of subdivision (a), or full-time active duty of a reservist, as defined in paragraph (2) of subdivision (a), for a period in excess of seven days in any 14-day period. For any service member who has been called to active service or duty since September 11, 2001, to engage in homeland defense against terrorism, his or her days of service prior to the effective date of this section shall be credited toward this seven-day period.

(Cal Mil & Vet Code § 400(b) [emphasis added].)

Here, Chandra was not on “military service” while training. She was not under a call to active service, nor does she fall within the term “active duty.”

Chandra takes issue with the fact that Plaintiff did not inquire into Chandra’s military status when he averred in the Request for Entry of Default that she was not in military service. Chandra proffers no legal authority that such an act requires the default to be set aside. Indeed, 50 USCS § 3931(b)(3) states that “[a] person who makes or uses an affidavit permitted under subsection (b) (or a statement, declaration, verification, or certificate as authorized under subsection (b)(4)) knowing it to be false, shall be fined as provided in title 18, United States Code, or imprisoned for not more than one year, or both.”

The motion to set aside based on the Servicemembers Civil Relief Act is DENIED.

b. CCP §473 Relief

Chandra also seeks relief pursuant to CCP §473 on grounds of mistake, inadvertence, and excusable neglect. She also moves on the ground of her insurer’s excusable neglect.

The proof of service shows that Chandra was personally served on 2/13/2018. She concedes that she was served. (Declaration of Sheenal Chandra, ¶ 5.) On 2/15/2018, she contacted the HR Department at My Wireless via telephone. She was told to send over the documents that she received. She did so on that same date. It was her understanding that they would ensure it was addressed. (Id.) On March 19, 2018 (a few days after her answer was due), she still had not heard from anyone at My Wireless regarding this matter so she reached out via email to Stella Wang. (Id. ¶ 6.) On March 22, 2018, she was contacted via telephone by David Hinshaw, who she understood to be counsel for My Wireless, Inc. She was also contacted via telephone by Rodney

Brennan (“Brennan”), an adjuster from Liberty Mutual – the insurer for My Wireless. It was her understanding from those conversations that she would be provided with a lawyer to represent her in this action. (Id. ¶ 8.) According to Brennan, it was his understanding that Chandra was already being represented by counsel for My

Wireless. (Declaration of Rodney Brennan.) While the matter was undergoing conflicts checks and file set-up, Plaintiff took Chandra’s default. Chandra was assigned legal counsel on 4/16/2018. (Id.)

Courts have found excusable neglect if the failure to act was due to the defendant’s reasonable reliance on a third party to defend. (See, e.g., Weitz v. Yankosky (1966) 63 Cal.2d 849, 855-856, Don v. Cruz (1982) 131 Cal.App.3d 695, 700.) Analogous to this situation, courts have granted relief where the employee reasonably relies on its employer to defend the action. (See Desper v. King (1967) 251 Cal.App.2d 659, 664.) Plaintiff contends that Chandra could not have reasonably relied on My Wireless to defend the action because Chandra was no longer an employee when she was served with the complaint. The Court is not convinced that Chandra’s reliance was not reasonable, especially given that the acts alleged in the complaint occurred while Chandra was employed with My Wireless and the acts took place at the store.

The motion is GRANTED pursuant to CCP §473. The default entered on 3/29/2018 is VACATED.

Chandra shall file and serve an answer or other pleading by no later than July 5, 2018.