Case Number: 17K06430 Hearing Date: January 17, 2018 Dept: 77

Defendant Aesthetic Visual Solutions, Inc.’s Motion to Vacate Judgment is GRANTED pursuant to CCP section 473, subsections (b) and (d). The judgment entered on May 16, 2017 is vacated.

Discussion

Following a wage and hour claim by Plaintiff Eric Jefferson (“Plaintiff”) against Defendant Aesthetic Visual Solutions, Inc. (“Defendant”), Hearing Officer Donald Banks held a hearing on November 22, 2016. (Motion, Cowherd Decl., ¶3.) At the end of the hearing, Defendant’s President and CEO, James Cowherd, informed Banks of Defendant’s new address at 3125 West Ali Baba Lane, Las Vegas, Nevada (“Ali Baba address”) and that Defendant’s old addresses at Commercial Way and East Patrick Lane were no longer valid. (Id. at ¶3 and Exh. A.) This request was made on the record and confirmed on the record by Banks. (Ibid; Bret Decl., ¶4 and Exh. E-G.)

Banks issued an ODA in Plaintiff’s favor on April 14, 2017. (Motion, Cowherd Decl., ¶4.) However, the ODA was served to Defendant’s address on Patrick Lane, not the Ali Baba address. (Ibid.; Bret Decl., ¶3 and Exh. C.) Defendant only realized an OAD had been issued following service of the notice of entry of judgment in this action at the Ali Baba address in mid-July 2017. (Motion, Cowherd Decl., ¶4.) Deputy Claudia Quintanilla at the DIR confirmed that ODA had been served to the Patrick Lane address. (Id. at ¶5.) This was further confirmed by the proof of service of the ODA. (Motion, Bret Decl., Martin Decl., ¶3 and Exhs. B and C.) On September 20, 2017, Deputy Quintanilla confirmed that the matter had been referred to DIR’s legal department with instructions to vacate the judgment. As of the filing of this motion, DIR has not sought to vacate the judgment.

CCP section 473(d)

Defendant’s evidence demonstrates that the entry of judgment was void due to DIR’s failure to properly serve it with the OAD. Cal. Labor Code section 98.1 requires that the ODA be served on the parties in the manner provided in CCP section 415.20. CCP section 415.20 requires service at the parties’ usual mailing address, or dwelling house, usual place of abode, or usual place of business. (CCP § 415.20(a), (b).) As Defendant’s evidence demonstrates, the Patrick Lane address where the ODA was served was not its usual mailing address, or dwelling house, usual place of abode, or usual place of business. Accordingly, the court finds that Defendant was not served with the ODA in a manner prescribed by law.

Based on the foregoing, the entry of judgment based on the defectively served ODA must be vacated.

CCP section 473(b)

Defendant alternatively moves to set aside the entry of judgment based on its mistake, inadvertence, surprise and excusable neglect in not appealing the ODA to the Superior Court under CCP section 473(b).

The court has broad discretion to vacate the entry of default, default judgment or a dismissal, but that discretion can be exercised only if the defendant establishes a proper ground for relief, by the proper procedure and within the set time limits. (See CCP § 473(b).) Pursuant to CCP section 473(b), a motion to set aside/vacate cannot be brought more than 6 months after the entry of judgment and must be made within a reasonable time if discretionary relief is sought. Here, the judgment was entered on May 16, 2017 and the instant motion was filed on November 16, 2017. The court finds that Defendant was diligent in bringing this motion in that it repeatedly reached out to DIR to resolve the issue, and was informed that DIR would move to vacate the judgment. Defendant was forced to bring the instant motion to vacate due to DIR’s inaction.

Accordingly, the court finds that as a result of improper service of the ODA, Defendant was denied the opportunity to seek an appeal pursuant to Labor Code section 98.2. Defendant, therefore, is also entitled to relief under CCP section 473(b).

Moving party to give notice.