Gutierrez v. Home Depot U.S.A., Inc.

to being served with the default judgment. It only requires finding that he hired counsel sometime after both learning of this lawsuit and being served with the default judgment.

In opposition, Plaintiff argues Defendant was properly served because a defendant can have more than one dwelling place or abode. Process server, David Vincent Larsen, states that he attempted service on Defendant’s home in Carlsbad three times and did not find anyone at home. (Larsen decl.)

Plaintiff’s evidence supports finding Defendant purchased the Virginia property and that he made representations on various occasions that he moved to Virginia. The deed to 15400 Mokete Trail, Smithfield, Virginia, shows it was transferred to Defendant on October 27, 2022. (Jablon decl., Exhibit B.) Defendant’s CEO received a text from Defendant on January 30, 2023, wherein Defendant stated he had moved to Virginia. (Jones decl., ¶2, Exhibit A.) An article dated August 19, 2024, from the Smithfield Times discusses a Virginia business owned by Defendant.

The article states Defendant represented that he “is a transplant from California.” (Id., Exhibit C.) Another article dated January 22, 2025, states that Defendant, the owner of another Smithfield, Virginia, business is an “isle of Wight County” resident. (Id., Exhibit D.) Another article dated November 3, 2025, quotes Defendant discussing one of his Smithfield, Virginia, businesses stating: “We do a little bit of work each day and open for the evening,” discussing how he and his wife intend to be positive members of the community in Smithfield, and that they represented to the paper that they relocated to Smithfield from California in 2022. (Id., Exhibit E.)

Even if this court did not consider Plaintiff’s evidence, Defendant himself does not dispute that the Virginia residence was one of his homes. Moreover, Ms. Franetusahova informed the process server that Defendant was not present—not that he did not live at the property. Zirbes v. Stratton (1986) 187 Cal.App.3d 1407, cited by Defendant, is distinguishable because the defendant in that case was served at her mother’s address, where she did not live.

IV. Objections in Reply

Defendant’s objection, number 1 to the declaration of Shawnee Jones, is overruled. Defendant’s objections, numbers 1 and 2 to the declaration of David Vincent Larsen, are overruled. Mr. Larsen’s phraseology cited in objection number 1, stating “after due and diligent effort” is not taken by this court as a legal determination but rather the process server’s understanding of his own attempts to serve Defendant. Defendant’s objections, numbers 1 and 2 to the declaration of Andrew Jablon, are sustained. Defendant’s objections, numbers 3 and 4 to the declaration of Andrew Jablon, are overruled.

V.

Conclusion

Defendant was properly served by substituted service at his home in Virginia. He provides no evidence that he was not actually aware of this lawsuit in time to defend against the action before his default or the default judgment was entered against him. Defendant’s motion to set aside his default under CCP section 473(b) is untimely. The motion is DENIED. Plaintiff’s counsel is directed to submit a written order consistent with this ruling in compliance with Cal. Rules of Court 3.1312.

3. 25CV01525, Gutierrez v. Home Depot U.S.A., Inc.

Pursuant to CCP section 473(b), Plaintiff Rosalba Gutierrez (“Plaintiff”) moves to vacate the dismissal of Plaintiff’s complaint and to reinstate this action.

I.

Procedural Background

Plaintiff filed this action on February 28, 2025, based upon an alleged slip and fall that occurred at a Home Depot located in Rohnert Park. The first Case Management Conference was held on August 5, 2025. Plaintiff’s Case Management Statement was filed late on July 24, 2025. There were no appearances. The court continued the hearing to the Order to Show Cause Calendar on October 28, 2025, and issued an Order to Show Cause Re: Dismissal for Failure to Prosecute and Failure to Timely File a CMC Statement. Defendant Home Depot U.S.A., Inc. was served and it filed its answer on September 22, 2025. On October 28, 2025, as no request for an appearance was made at the OSC hearing, despite counsel for Plaintiff appearing, the action was dismissed. This motion was filed on March 27, 2026.

II. Legal Standards

CCP section 473(b) provides, in relevant part: “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 the attorney's mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against the attorney's client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against the attorney's client, unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect. The court shall, whenever relief is granted based on an attorney's affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties.”

III. Argument

Plaintiff’s counsel, Justin Renge, states that his failure to appear at the CMC hearing and his failure to inform the court and opposing counsel of his intent to appear at the OSC hearing was due to his mistake, inadvertence, surprise, or neglect. He states Plaintiff’s failure to file a timely Case Management Statement was due to a clerical error on the part of his office. (Renge decl., ¶5.) He states he mistakenly believed that the CMC had been rescheduled, which resulted in his failure to appear for the August 5, 2025, CMC hearing. (Id., ¶6.)

He states that while the court’s file shows notice of the October 28, 2025, OSC hearing was mailed and electronically served on his office, his office did not receive the notice, or it did not properly record the date of the hearing. (Id., ¶¶8, 20- 23.) Despite searching office cases and emails, he was unable to find notice of the August CMC hearing. (Id., ¶¶20-23.) He states he became aware of the October 28, 2025, OSC hearing when he conducted an audit of his files and from a search of the court’s docket. (Id., ¶9.)

Plaintiff’s counsel states he was unaware that the court posted a tentative ruling in advance of the OSC hearing and that he was required to request to be heard at least 24 hours prior to the hearing. (Id., ¶11.)

Plaintiff’s counsel appeared at the OSC hearing. He attempted to explain his failure to appear at the CMC hearing and his failure to provide notice to the court of his intent to appear at the OSC hearing. (Id., ¶¶12, 13, 16, 17.) Defendant’s counsel did not appear at the OSC hearing, and Plaintiff’s counsel could not confirm that Defendant’s counsel had been notified of Plaintiff’s intent to appear. (Id., at ¶15.) The court dismissed the action without prejudice.

Defendant argues that Plaintiff seeks the same type of relief as in Peltier v. McCloud River R.R. Co. (1995) 34 Cal.App.4th 1809, that this case was dismissed based upon Plaintiff’s counsel’s series of procedural failures, and that this action was dismissed after hearing from Plaintiff’s counsel.

In Peltier v. McCloud River R.R. Co. (1995) 34 Cal.App.4th 1809, the trial court dismissed the case for failing to bring it to trial within three years under CCP section 583.410, which gives a court discretion to dismiss an action for delay in prosecution. The plaintiff moved for relief under CCP section 473, asserting that his attorney’s decision not to move the case forward until plaintiff’s condition had stabilized constituted mistake or neglect within the meaning of that provision. (Id., at p. 1812.)

The CCP section 473 motion was made after the plaintiff filed opposition to the defendant’s motion to dismiss, and after a motion for reconsideration under CCP section 1008. (Id., at p. 1813.) In support of the section 473(b) motion, the plaintiff had provided a statement from his prior attorney who stated: “the decision to proceed at the pace and as plaintiff did [sic] was solely mine.” (Id., at p. 1814.)

In upholding the trial court’s denial of the CCP section 473(b) motion, the appellate court noted that “when the Legislature amended section 473 to include this provision, it left the discretionary dismissal statutes (§ 583.410 et seq.) intact. Under these statutes, the trial court may dismiss an action for failure to serve the complaint within two years or to bring the case to trial within three years (§ 583.420, subd. (a)), exercising its discretion according to the criteria prescribed by the Judicial Council. (§ 583.410, subd. (b); Cal. Rules of Court, rule 373(e).).” (Id. at p. 1816.) The appellate court noted that the vast majority of plaintiffs whose actions are dismissed under section 583.410 are due to attorney neglect such that section 473(b) would nearly nullify the discretionary dismissal statutes. (Ibid.)

Here, this court discussed Plaintiff’s untimely request for a hearing on the tentative ruling published for the OSC calendar. But this court did not consider the merits of Plaintiff’s counsel’s explanation regarding his failure to appear at the CMC hearing. Defendant’s counsel was not present at the OSC hearing and Plaintiff’s counsel could not confirm notice was given to Defendant of Plaintiff’s counsel’s intent to appear at the OSC hearing. In short, the action was dismissed for failing to timely request a hearing on the OSC tentative ruling. This court has not previously considered a formal motion or explanation of Plaintiff’s failure to appear at the August 5, 2025, CMC hearing.

IV. Attorney Fees and Costs

CCP section 473(b) states that when a motion is granted pursuant to an attorney affidavit of fault this court should “direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties.” Neither party has addressed this issue.

V.

Conclusion

This court finds that the requested relief is mandatory based upon Plaintiff’s former counsel’s mistake, inadvertence, surprise, or neglect. The motion is GRANTED. The dismissal entered on October 28, 2025, is hereby vacated and set aside. This court will sign the proposed order.

4. 25CV01793, Lorenzini v. Volkswagen Group of America Inc.

Per the request of submitted party, both the Motion for Protective Order and the Motion to Impose Terminating and Monetary Sanctions have been DROPPED from calendar.

5. 25CV04758, Garcia v. LCS Community Employment, LLC

7