2018-00229047-CU-OE

Sylvia Sweetland vs. Delta Dental of California

Nature of Proceeding: Motion to Set Aside/Vacate Entry of Default

Filed By: Truxler, Christopher J.

Defendant Delta Dental of California’s (“Defendant”) motion to set aside/vacate entry of default is GRANTED.

Plaintiff Sylvia Sweetland (“Plaintiff”) filed her complaint on March 13, 2018, alleging disability discrimination, failure to prevent disability discrimination, failure to accommodate disability, failure to engage in a good faith interactive process, and wrongful termination in violation of public policy.

Defendant moves to set aside the default judgment entered against it on June 26, 2018. Defendant moves pursuant to CCP § 473(b) on the grounds that its failure to defend against the action was due to its own inadvertence, mistake, surprise, or excusable neglect. Defendant also moves pursuant to CCP § 425.11(c) on the grounds Plaintiff failed to serve it with a statement of damages.

As to Defendant’s second argument, Defendant relies on Schwab v. Rondel Homes (1991) 53 Cal.3d 428, 432, for the proposition that a statement of damages must be served on defendant before default may be taken in a disability discrimination action. Indeed, pursuant to Schwab, where a plaintiff seeks damages for personal injuries such as emotional injuries, and those injuries are not merely incidental to the causes of action, plaintiff is required to provide a statement of damages. (Schwab, supra, at

432.) Here, however, Plaintiff argues her claims for emotional distress damages are merely incidental to her causes of action and the majority of her damages fall under front and back pay damages due to wrongful termination. The Court agrees and, therefore, Defendant’s motion is denied on this ground.

As to Defendant’s first argument, Defendant contends on July 25, 2018, it discovered default had been entered against it and that it had been purportedly served with the summons and complaint, but Defendant has no record of being served. Specifically, Defendant contends the Proof of Service indicates Plaintiff’s process server left a copy of the summons and complaint with Defendant’s facilities administrative assistant,

“Shannon Davino” (actual name Shannon Babino), but Ms. Babino’s service log reflects Defendant was served with a subpoena, not a summons. Further, while the proof of service states the summons and complaint were subsequently mailed to Defendant on April 24, 2018, Ms. Babino’s log contains no entry reflecting Defendant received a summons and complaint from Plaintiff by mail. Moreover, Defendant contends it maintains a physical file for each pending legal matter, but the physical file for Plaintiff’s case does not contain a copy of the served summons and complaint.

Defendant argues at the end of April, it relocated offices; 80 percent was relocated to Oakland and the remaining 20 percent was relocated to a different office in San Francisco. During this time, the attorney assigned to handle this matter was also relocated to Oakland and, shortly thereafter, left the company. Defendant reasons the move, resignation of the handling attorney, and purported error by Ms. Babino to perhaps correctly log any service of the summons and complaint may have led to misplacement of the papers and is excusable error warranting setting aside the default judgment. Defendant also argues it was surprised to learn it had purportedly been served with the summons and complaint because its hard file did not contain a copy of the summons and complaint and Defendant had been in contact with Plaintiff’s counsel prior to the filing of the complaint, but Plaintiff’s counsel had not contacted Defendant before requesting entry of default.

In opposition, Plaintiff contends Defendant was properly served via substituted service to Defendant’s agent of service of process listed on the Secretary of State website and that Plaintiff’s counsel mailed the request for entry of default to Defendant’s agent for service of process. Plaintiff argues Defendant admits it had notice of Plaintiff’s complaint through a commercial news source, but failed to follow up regarding service.

Code of Civil Procedure § 473(b) provides that “[t]he court may, upon any terms as may be just, relieve a party . . . from a judgment, dismissal, order or other proceeding.

. . taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” A motion for relief from judgment under this section lies within the sound discretion of the trial court. (Elston v. City of Turlock (1985) 38 Cal.3d 227, 233.)

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 trial court has discretion under section 473(b) based on its evaluation of the nature of the mistake or error alleged and the justification proffered for the conduct that occurred. “The general underlying purpose of section 473(b) is to promote the determination of actions on their merits.” (Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 838; accord, Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 255-256 [“‘It is well settled that appellate courts have always been and are favorably disposed toward such action upon the part of the trial courts as will permit, rather than prevent, the adjudication of legal controversies upon their merits.’ [Citation.] Thus, ‘the provisions of section 473 of the Code of Civil Procedure are to be liberally construed and sound policy favors the

determination of actions on their merits.'”].) (Austin v. Los Angeles Unified School District (2016) 244 Cal. App. 4th 918, 928.)

In the exercise of its discretion, the motion is granted. Defendant has set forth sufficient evidence constituting mistake, inadvertence, or excusable neglect warranting relief under section 473(b). Even assuming the summons and complaint was properly served, Defendant has set forth evidence that the documents were somehow misplaced, likely due to the move, resignation of the handling attorney, and error by Ms. Bambino to correctly log the documents. This is sufficient. Further, the request is timely and there is no indication Plaintiff will be prejudiced if the default is set aside. This case is still in its early stages and no trial date has been set.

The default entered against Defendant on June 26, 2018, is set aside.

Defendant shall file and serve the proposed answer attached to this motion by September 14, 2018.

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.