Case Number: KC068288 Hearing Date: July 20, 2016 Dept: J

Re: Gabriela Cabrera v/ Shu Feng Yuan, LLC (KC068288)

MOTION TO SET ASIDE DEFAULT AND DEFAULT JUDGMENT, IF ENTERED

Moving Party: Defendant Shu Feng Yuan, LLC

Respondent: No timely opposition filed

POS: Moving OK

Plaintiff is disabled and alleges that on or about 2/29/16, while patronizing Defendant Shu Feng Yuan, LLC’s business establishment, she encountered an architectural barrier which denied her equal access to use of a paper towel dispenser. The Complaint, filed on 3/11/16, asserts causes of action for:

1. Violation of Civil Code Section 51
2. Violation of Civil Code Sections 54 and 54.1.

On 4/25/16, plaintiff filed a proof of service, which reflects that Defendant Shu Feng Yuan, LLC was personally served with the summons and complaint on 4/6/16. On 5/20/16, Defendant Shu Feng Yuan, LLC’s default was entered. Judgment has not yet been entered.

The Case Management Conference is currently scheduled for 8/11/16.

Defendant Shu Feng Yuan, LLC moves this court, per CCP §§ 473(b) and 473.5, for an order requesting that the default and, if entered, default judgment be set aside.

CCP § 473 states, in pertinent part, as follows:

“(b) 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… Notwithstanding any other requirements of this
section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her
mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or
dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake,
inadvertence, surprise, or neglect…” (emphasis added).

“The court is empowered to relieve a party ‘upon any terms as may be just…from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.’ [CCP § 473(b)].” Weil & Brown, et al., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2016) ¶ 5:282. “Relief under CCP § 473(b) may be based either on: • An ‘attorney affidavit of fault,’ in which event, relief is mandatory; or • Declarations or other evidence showing ‘mistake, inadvertence, surprise or excusable neglect,’ in which event relief is discretionary.” Id. at ¶ 5:290 (emphasis theirs).

“’(W)henever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise or neglect, (the court shall) vacate any (1) resulting default entered by the clerk…or (2) resulting default judgment or dismissal entered against his or her client…’ [CCP § 473(b) (emphasis and parentheses added)]. The purpose is ‘to alleviate the hardship on parties who lose their day in court due solely to an inexcusable failure to act on the part of their attorneys.’ [Zamora v. Clayborn Contracting Group, Inc. (2002) 28 C.4th 249, 257 (emphasis in original; internal quotes omitted)].” Id. at ¶ 5:292.

“The attorney is the professional responsible for supervising the work of his or her legal assistants. (Vaughn v. State Bar (1972) 6 C.3d 847, 857). ‘[E]ven though an attorney cannot be held responsible for every detail of office procedure, he must accept responsibility to supervise the work of his staff.’ (Ibid.; see also Spindell v. State Bar (1975) 13 C. 3d 253, 260 [‘An attorney has an obligation to adequately supervise his employees….’]; ABA Model Rules Prof. Conduct, rule 5.3, com. [‘A lawyer should give such assistants appropriate instruction and supervision concerning the ethical aspects of their employment, particularly regarding the obligation not to disclose information relating to representation of the client, and should be responsible for their work product’].).” Hu v. Fang (2002) 104 C.A.4th 61, 64. In Hu, the Second District, Division Eight Court of Appeal held that “in the context of a motion under 473, a paralegal’s mistake is attributable to the attorney responsible for supervising the paralegal.” Id. at 63.

Here, Defendant Shu Feng Yuan, LLC’s counsel, Long Z. Liu (hereinafter, “Liu”), technically does not acknowledge that his legal assistant Norberto Limon’s (hereinafter, “Limon”) error was attributable to him; however, the Declarations of Liu and Limon, cobbled together, reflect that on 5/5/16, Limon attempted to file Defendant Shu Feng Yuan, LLC’s “Notice and Application for Stay of Proceeding and Early Evaluation” with the court. (Motion, Limon Declaration, ¶ 1, Exhibit “A”). Limon attests that on 5/6/16, his office “received a notice via email from the court indicating that the fax filing had been rejected due to an invalid credit card account number on the fax transmission cover sheet. (Id., ¶ 2). He further attests that the notification of rejection was forwarded to the office’s spam folder, that he went out on a one-month leave shortly thereafter, and that he did not realize that his client was at risk of default until he received plaintiff’s counsel’s 6/17/16 email. (Id., ¶¶ 4 & 5). Liu, for his part, attests that he did not see a rejection in his email inbox and thus was under the impression that the 5/5/16 fax filing attempt had been successful. (Motion, Liu Declaration, ¶ 9). The motion is unopposed. These facts warrant mandatory relief.

The motion to set aside the default is granted. A copy of the proposed Verified Answer has been submitted herewith (Id., Exhibit “F”), and is deemed served and filed as of the date of this hearing.