Gabriel Leon vs Good Samaritan Shelter et al

Case Number

24CV00121

Case Type

Hearing Date / Time

Mon, 11/18/2024 - 10:00

Nature of Proceedings

CMC; Motion: Set Aside Entry of Default

Tentative Ruling

Gabriel Leon v. Good Samaritan Shelter, et al.         

Case No. 23CV00121         

Hearing Date: November 18, 2024                            

HEARING:              Defendant DignityMoves’ Motion to Set Aside Entry of Default

ATTORNEYS:        For Plaintiff Gabriel Leon: Ramin R. Younessi, Christopher S. Afgani

                                    For Defendant Good Samaritan Shelter: Roger M. Mansukhani, Emma R. Horner, Ali Hmoud

                                    For Defendant DignityMoves: Ashley R. Morris, David T. Ching  

TENTATIVE RULING: The motion of Defendant DignityMoves to set aside entry of default is granted. Dignity Moves shall separately file and serve their answer to plaintiff’s complaint no later than November 22, 2024.

Background:

This action commenced on January 9, 2024, by the filing of the complaint by plaintiff Gabriel Leon (“Leon”) against defendants Good Samaritan Shelter (“Good Samaritan”), DignityMoves (“Dignity”), and Jack Lory (“Lory”) for: (1) Discrimination; (2) Harassment; (3) Retaliation; (4) Failure to Prevent Discrimination, Harassment, and Retaliation; (5) Failure to Provide Reasonable Accommodations; (6) Failure to Engage in a Good Faith Interactive Process; (7) Declaratory Judgment; (8) Battery; (9) Assault; (10) Sexual Battery; (11) Gender Violence; (12) Violation of the Ralph Civil Rights Act; (13) Violation of the Tom Bane Civil Rights Act; (14) Negligent Supervision and Retention; (15) Retaliation; (16) Wrongful Termination in Violation of Public Policy; (17) Failure to Provide Meal and Rest Periods; (18) Failure to Provide Itemized Wage and Hour Statements; (19) Waiting Time Penalties; and (20) Failure to Permit Inspection of Personnel and Payroll Records.

The complaint sets forth allegations of numerous acts of sexual harassment and other wrongful conduct by defendants during Leon’s employment with Good Samaritan and Dignity from September 24, 2022, until June 30, 2023.

On March 4, 2024, Good Samaritan answered the complaint, asserting a general denial and 92 affirmative defenses.

On July 11, 2024, Leon dismissed Lory as a  defendant.

On July 5, 2024, Leon filed a proof of service of summons on Dignity, indicating that Dignity was served via Elizabeth Funk, agent for service of process, at 2131 Southside Parkway, Santa Maria, by substituted service, to Brian Mason, on May 1, 2024. The proof of service indicates that Dignity was also served by mail, at the same address, on May 2, 2024.

Having received no answer to the complaint from Dignity, Leon moved for default which was entered on July 18, 2024.

Dignity now moves to set aside the default pursuant to Code of Civil Procedure section 473, et seq., and Civil Code section 1788.61. The hearing was previously continued because Dignity did not include a copy of the proposed responsive pleading. Dignity has now corrected that error.

Leon opposes the motion.

Analysis:

“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.” (Code Civ. Proc., § 473, subd. (b); italics added.)

The trial court has broad discretion to vacate the judgment and/or the clerk’s entry of default that preceded it.  However, “this discretion may be exercised only after the party seeking relief has shown that there is a proper ground for relief, and that the party has raised that ground in a procedurally proper manner, within any applicable time limits.” (Cruz v. Fagor America, Inc. (2007) 146 Cal.App.4th 488,

495.)

Unless the motion to set aside default is accompanied by an attorney affidavit of fault, which is not the case here, relief is discretionary, and the burden is on defendant to demonstrate mistake, inadvertence, surprise, or excusable neglect. (See Lorenz v. Commercial Accept. Ins. Co. (1995) 40 Cal.App.4th 981, 989.) The party moving for relief on the basis of “mistake, inadvertence, surprise, or excusable neglect” must show specific facts demonstrating that one of these conditions was met. (Hopkins & Carley v. Gens (2011) 200 Cal.App.4th 1401, 1410.)

“Where there is no showing the party opposing the motion to vacate the judgment “ ‘has suffered any prejudice or that injustice will result from the trial of the case upon its merits, very slight evidence will be required to justify a court in setting aside the default.” ’ [Citation.]” (Buckert v. Briggs (1971) 15 Cal.App.3d 296, 302-303.)

Dignity’s Chief Executive Officer, and agent for service of process, Elizabeth Funk, declares the following:

“I am informed and believe that Plaintiff in the above-entitled matter attempted to serve DignityMoves with a Complaint filed in Santa Barbara County Superior Court in relation to alleged conduct that occurred at “ ‘Hope Village’ ”. Since DignityMoves does not own, operate or employ any personnel at the location, any documents left at that facility were not personally served on the organization.” (Funk Decl., ¶ 6.)

The address listed for service of process is 2406 Bush Street, San Francisco, and Funk has “not received any documents by personal service, mail or otherwise at [her] address identified in the attached Statement of Information.” (Funk Decl., ¶ 7 & Exh. A.)

Dignity does not have any personnel on site at 2131 Southside Parkway, Santa Maria, where the proof of service indicates that the summons, complaint, and other documents were served. (Funk Decl., ¶ 8.) Dignity has never employed anyone named Brian Mason, who is listed as Dignity’s employee on the proof of service.

Dignity only learned about the filing of the proof of service when they received an email from “Jack Lorenz”. (Note: This appears to be a typographical error, as Funk is almost certainly referring to Lory.) (Funk Decl., ¶ 9.)

“DignityMoves immediately communicated with its counsel to determine whether the organization was served and found that it was neither served at its stated location for its Registered Agent for Service of Process nor on any person within the organization that could qualify as “ ‘substituted’ ” service.” (Funk Decl., ¶ 10.)

Leon argues that he was forced to serve Dignity at the Santa Maria location due to Dignity’s multiple attempts to evade service, in February 2024, at the San Francisco location listed on the California Secretary of State website. Leon fails to explain why, at the very least, he did not mail the documents to the address listed on the California Secretary of State website, and instead mailed them to the Santa Maria address.

Despite Leon’s argument, service does not appear to have been proper and the default should be set aside. Also, under the circumstances, the court will not award any fees or costs to Leon, as he requests.

The motion will be granted.