Loanny Cortes v. Caruso's Italian Kitchen; Caruso's Cucina Italiana; Hani Mammo; Mudafar Mammo; and Does 1-20

the Motion. The Court accordingly GRANTS the Motion. B. Monetary Sanctions "[T]he court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to a demand for inspection, copying, testing, or sampling, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust." (Code Civ.

Proc., Sec. 2031.300(c)). Further, the Court may award sanctions "in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed[] ... or the requested discovery was provided to the moving party after the motion was filed." (Cal. Rules of Court, rule 3.1348(a).) Plaintiff requests monetary sanctions against Rocio in the amount of $320.00, calculated as 0.4 hours spent preparing the Motion, at an hourly rate of $650.00, plus $60 in filing fees. (Zakari Decl., P. 6.)

Given that Rocio has not served responses to the requests or filed an opposition providing good cause for non-response, the Court finds sanctions appropriate. The Court finds the time expended on the Motion to be reasonable. However, Plaintiff's counsel provides no facts justifying the hourly rate of $650. The Court accordingly finds the rate to be unreasonable and exercises its discretion to reduce the rate to $300 per hour based on the Court's knowledge of prevailing rates for matters of this type and complexity.

The Court finds the total and reasonable attorney fees and costs in connection with preparation of the Motion to be $180, calculated as 0.4 hours at a rate of $300, plus the $60 filing fee. Plaintiff's request for monetary sanctions is thus GRANTED IN PART. CONCLUSION The Court GRANTS Plaintiff's motion. Defendant Rocio A. Flamenco is ordered to serve verified responses, without objections, to Plaintiff's Request for Production of Documents to Defendant, Rocio A. Flamenco, Set One within 30 days.

The request for sanctions is GRANTED IN PART. Defendant Rocio A. Flamenco is ordered to pay $180.00 to Plaintiff's counsel within 30 days. Moving party to give notice.

Dept. F49 | Date: 9/3/26 | Case Name: Loanny Cortes v. Caruso's Italian Kitchen; Caruso's Cucina Italiana; Hani Mammo; Mudafar Mammo; and Does 1-20 |

Case No. 24CHCV03453 | LOS ANGELES SUPERIOR COURT NORTH VALLEY DISTRICT DEPARTMENT F49 SEPTEMBER 3, 2026 MOTION TO SET ASIDE DEFAULTS Los Angeles Superior Court Case No. 24CHCV03453 Motion filed: 3/30/26 MOVING PARTY: Defendants Caruso's Italian Kitchen and Hani Mammo RESPONDING PARTY: Plaintiff Loanny Cortes NOTICE: OK RELIEF REQUESTED: An order from this Court setting aside the clerk's entry of default against Defendants Caruso's Italian Kitchen and Hani Mammo. TENTATIVE RULING: The Motion is DENIED.

BACKGROUND This employment dispute arises from alleged misclassification of workers, failure to track hours worked, and failure to afford statutory meal and rest periods, resulting in underpayment of wages. On September 24, 2024, Plaintiff Loanny Cortes ("Plaintiff") initiated this action. Subsequently, on February 19, 2025, Plaintiff filed the operative First Amended Complaint ("FAC") against Defendants Caruso's Italian Kitchen ("Caruso's Kitchen"), Caruso's Cucina Italiana ("Caruso's Cucina"), Hani Mammo ("Hani"), Mudafar Mammo ("Mudafar"), and Does 1 through 20, alleging the following causes of action: (1) violation of the Private Attorneys General Act; (2) failure to pay minimum wage; (3) failure to compensate for all hours worked; (4) failure to pay overtime compensation; (5) failure to pay rest period compensation; (6) failure to pay meal period compensation; (7) failure to furnish accurate wage and hour statements; (8) failure to pay wages upon discharge; (9) statutory penalties, (10) failure to indemnify and illegal deductions from wages; and (11) unfair competition.

On July 7, 2025, at the request of Plaintiff, Mudafar was dismissed from the action. On November 5, 2025, default was entered against Hani and Caruso's Kitchen. On February 2, 2026, default was entered against Caruso's Cucina. On March 30, 2026, Caruso's Kitchen and Hani (collectively, "Moving Defendants") filed the instant Motion to Set Aside Defaults (the "Motion"). On August 21, 2026, Plaintiff filed an Opposition.

On August 27, 2026, Moving Defendants filed a Reply. ANALYSIS Code of Civil Procedure section 473 authorizes the Court to set aside default "taken against a party through the party's mistake, inadvertence, surprise, or excusable neglect." (Sec. 473, subd. (b).) This discretionary relief provision "is often applied liberally where the party in default moves promptly to seek relief, and the party opposing the motion will not suffer prejudice if relief is granted. [Citations.]" (Elston v. City of Turlock (1985) 38 Cal.3d 227, 233.) "[B]ecause the law strongly favors trial and disposition on the merits, any doubts in applying section 473 must be resolved in favor of the party seeking relief from default. [Citations.]" (Ibid.)

When an application for relief is made within six months after entry of judgment and is accompanied by "an attorney's sworn affidavit attesting to the attorney's mistake, inadvertence, surprise, or neglect," the court must vacate any default entered by the clerk which will result in default judgment. (Code Civ. Proc., Sec. 473, subd. (b).) Relief from default is mandatory if based on attorney mistake, neglect, inadvertence, or surprise. (Ibid.) Additionally, where the Court determines that service did not result in actual notice to the responding party in time to defend the action, and that the lack of notice "was not caused by the party's avoidance of service or inexcusable neglect, it may set aside the default ... on whatever terms as may be just and allow the party to defend the action." (Sec. 473.5, subd. (c).)

A. Motion to Set Aside Defaults Moving Defendants seek to set aside the defaults entered against them on November 5, 2025. They cite three separate grounds for relief: (1) Code of Civil Procedure section 473.5, (2) the mandatory relief provision of Code of Civil Procedure section 473, subdivision (b), and (3) the discretionary relief provision of section 473, subdivision (b). (1) Relief Under Section 473.5 A motion to set aside pursuant to Code of Civil Procedure section 473.5 "shall be accompanied by an affidavit showing under oath that the party's lack of actual notice in time to defend the action was not caused by the party's avoidance of service or inexcusable neglect.

The party shall serve and file with the notice a copy of the answer, motion, or other pleading proposed to be filed in the action." (Sec. 473.5, subd. (b).) While Moving Defendants contend that the Motion is timely under section 473.5, they do not contend that they lacked actual notice of the action in time to defend. This is one of four wage-and-hour disputes filed by Plaintiff's counsel against Moving Defendants, and all evidence indicates that Moving Defendants were aware of the action with ample time to respond before default was taken.

Moving Defendants' counsel, James Howard

("Howard"), attests to having filed a motion to quash service in another of the four cases but deciding to wait on the outcome of that motion rather than filing a similar motion or otherwise responding in this action. (Howard Decl., P. 2.) The failure to respond was accordingly not due to lack of actual notice, and section 473.5 is not an appropriate ground for relief. (2) Mandatory Relief Under Section 473, Subdivision (b) The mandatory provision of Code of Civil Procedure section 473, subdivision (b) requires the court to vacate any resulting default entered by the clerk against an attorney's client if relief is requested within 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."

The Court must grant relief even in cases where the neglect was inexcusable. (Martin Potts & Associates, Inc. v. Corsair (2016) 244 Cal.App.4th 432, 439.) Mandatory relief requires a genuine concession of error on the part of the attorney. (State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 609-610 [relief unavailable "[a]bsent a straightforward admission of fault" by attorney]; Cowan v. Krayzman (2011) 196 Cal.App.4th 907, 916 [finding no error in denial of mandatory relief where defense counsel's declaration "did not unequivocally admit error"].)

Plaintiff argues that mandatory relief is unavailable to Moving Defendants because Howard's declaration does not constitute the requisite affidavit of fault. (Opp'n, at p. 4.) Plaintiff asserts that Howard fails to accept any responsibility for the entry of default. (Ibid.) Here, Moving Defendants contend in the Motion that the entry of default resulted from a breakdown in agreement between the parties' counsel. (Mot., at p. 5.) Moving Defendants state that, at worst, the default resulted from their counsel trusting the representation of Plaintiff's counsel that no default would be sought until after Moving Defendants' motion for consolidation was heard in another of the four matters. (Ibid.)

Moving Defendants further assert that Plaintiff's counsel represented that the default was taken due to an intra-office error, placing the blame squarely with Plaintiff's counsel. (Ibid.) Howard's declaration affirms this assignment of fault. Howard attests that Plaintiff's counsel agreed not to pursue default until after the motion to quash was heard, then also agreed not to seek default until after the motion to consolidate was heard. (Howard Decl., P.P. 2-4.) Howard further attests that he was surprised to learn of the entry of default and that he reasonably trusted the representations of Plaintiff's counsel that he would wait until after resolution of the motions to quash and to consolidate. (Id., P.P. 7, 12.)

At no point does Howard genuinely concede error, instead averring that he reasonably relied on an agreement with Plaintiff's counsel. The Court therefore agrees with Plaintiff that Howard's declaration is insufficient to establish attorney fault, and accordingly, entitlement to mandatory relief. (3)

Discretionary Relief Under Section 473, Subdivision (b) (a) Procedural Requirements A motion under the discretionary relief provision of section 473, subdivision (b) must be made "within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or other proceeding was taken." (Code Civ. Proc., Sec. 473, subd. (b).) The motion must be accompanied by a copy of the proposed responsive pleading. (Ibid.) The six-month limitation is an outer limit of the court's ability to grant relief. (Caldwell v.

Methodist Hospital (1994) 24 Cal.App.4th 1521, 1524.) An application for relief must also be made within a reasonable time after the party becomes aware that a default was taken against it. (Stafford v. Mach (1998) 64 Cal.App.4th 1174, 1181.) The determination whether relief was sought within a reasonable time depends on the facts and circumstances of the individual case. (Ibid.) Any delay must be explained with a substantial reason that justifies the delay. (Ibid.) Apparently tactical decisions to delay filing will not support a finding that the moving party acted diligently in seeking relief. (Id., at p. 1185.)

Here, the Motion includes a copy of Moving Defendants' proposed answer, and the Motion was filed on March 30, 2026, less than six months after default was entered on November 5, 2025. However, for the reasons set forth below, the Court finds that the Motion was not made within a reasonable time after learning of the default. Howard explains that he waited to file the Motion until after the hearing on Moving Defendants' motion to consolidate in Case No. 24CHCV03450 to conserve judicial resources and "avoid filing [un]necessary motions." (Howard Decl., P. 9.)

The Motion asserts that "consolidation of these [four] cases would have removed these defaults and made such motions unnecessary." (Mot., at p. 5.) While the Motion also alludes to an agreement to wait in connection with the Motion (Ibid.), no competent evidence supports the existence of an agreement that Moving Defendants would wait until after the consolidation motion was heard to file a motion to vacate the defaults. Every indication is that Moving Defendants were aware of the default at or around the time it was taken.

Plaintiff's counsel attests that he sent an email to Howard to inform him of Plaintiff's intent to request entry of default on November 1, 2025. (Sirmabekhian Decl., P. 6.) Howard does not dispute receiving this email, and Moving Defendants indicate that the nearly five-month delay in filing was intentional. (Mot., at p. 5.) Moving Defendants decided to wait to see the outcome of the motion to consolidate. (Ibid.) This is exactly the kind of strategic decision that has been found inadequate to account for a lengthy delay. (Howard Decl., P. 9; Mot., at p. 5; e.g., Stafford, supra, 64 Cal.App.4th, at p. 1185.)

Moving Defendants, moreover, fail to explain how consolidation of the matters would extinguish the entry of default without resort to motion practice. The Court is accordingly not satisfied that Moving Defendants' reason for delay in bringing the Motion is substantial, and finds that the Motion was not brought within a reasonable time.

(b) Grounds for Relief Even if the Motion were timely made, the Court finds that Moving Defendants have failed to meet their burden of demonstrating mistake, inadvertence, surprise, or excusable neglect. "'[S]urprise,' as used in section 473, refers to 'some condition or situation in which a party ... is unexpectedly placed to his injury, without any default or negligence of his own, which ordinary prudence could not have guarded against." (State Farm, supra, 90 Cal.App.4th, at p. 611.) Moving Defendants contend that the entry of default was the result of surprise, with default being taken despite an agreement between the parties to resolve other motions before Plaintiff would pursue default. (Mot., at p. 7.)

Howard attests that the parties made two agreements, with Plaintiff's counsel representing first that Plaintiff would not seek default until after resolution of the motion to quash, and then that Plaintiff would wait until after resolution of the motion to consolidate. (Howard Decl., P.P. 1, 4.) Howard attests that Plaintiff's counsel "confirmed" the two agreements not to seek default "until all issues were addressed." (Id., P. 6.) Plaintiff argues that Moving Defendants do not meet their burden of demonstrating that the failure to respond to the FAC was reasonable.

Plaintiff contends that Plaintiff granted only a temporary and discretionary extension of time to respond that was expressly revoked by Plaintiff's counsel's later confirmation that the deadline to respond had expired. (Opp'n, at p. 4.) Plaintiff adds that Moving Defendants may not claim mistake or surprise because: (1) Moving Defendants ignored a Court-ordered deadline, and (2) Plaintiff "repeatedly" warned them of their default and gave them multiple opportunities to respond, displaying a "pattern of inaction." (Id., at pp. 4-5.)

Plaintiff asserts, and Plaintiff's counsel attests, that the agreement between the parties was that Plaintiff would temporarily delay requesting default, and that the agreement did not represent an indefinite extension of time to respond to the FAC. (Opp'n, at p. 4; Sirmabekhian Decl., P.P. 8-9.) The text of the agreement, made via email on July 9, 2025, stated that Plaintiff's counsel would "hold off on filing request for entry of default for the time being." (Mot., at p. 3; Sirmabekhian Decl., P. 8.)

Plaintiff points to October 31, 2025 and November 1, 2025 emails to support the contention that Plaintiff revoked any extension of time to respond. (Sirmabekhian Decl., P.P. 4-6, Exhs. 2-3.) The October 31, 2025 email states: "*Defendants responsive pleadings deadline has now expired." (Id., Exh. 2.) And the November 1, 2025 email warns that Plaintiff intends "to file for entry of default soon." (Id., Exh. 3.) Plaintiff's counsel attests that Plaintiff did not respond to either of these emails. (Id., P. 6.)

To begin with, the Court notes that Moving Defendants have violated no order in this action. Moving Defendants' contention of surprise therefore rests on the reasonableness of its reliance on the agreement to postpone seeking default.

As to Moving Defendants' reasonable reliance, the Court finds Howard's declaration to be misleading. While Howard characterizes Plaintiff's counsel's as having "confirmed" agreements not to seek entry of default "until all issues were addressed," Howard presents an incomplete record of the email communications from Plaintiff's counsel. The initial email sent on October 31, 2025 states that the time for responsive pleading "has not expired" and asks Howard to advise on the status of his representation of Moving Defendants. (Howard Decl., Exh. 2.)

However, Plaintiff's counsel sent a corrective email, time-stamped six minutes later, to notify Howard that the responsive pleading deadline had passed. (Sirmabekhian Decl., Exh. 2.) Plaintiff's follow-up email on November 1, 2025 notified Howard that Plaintiff intended to request entry of default, removing any lingering ambiguity concerning Plaintiff's position regarding the time for response. (Id., Exh. 3.) Moving Defendants not only omit these subsequent communications from their moving papers, but they also fail to account for them in their Reply.

Additionally, Howard's representation of the existence of an agreement concerning the motion to consolidate is vague and unsupported. While he provides details concerning when and how the parties agreed to the postponement of default until after the motion to quash was resolved, and the Motion supplies the text of that agreement, Howard does not indicate when the agreement to wait until after the motion to consolidate was made. Given that Plaintiff's counsel contradicts any agreement to extend the time for responsive pleading beyond hearing on the motion to quash, the Court declines to credit Howard's uncorroborated representation.

Based on the foregoing, the Court finds that Plaintiff's counsel agreed temporarily to postpone seeking entry of default against Moving Defendants, and that a reasonable understanding of the agreement was that it would expire upon resolution of the motion to quash. The Court further finds that Plaintiff gave unequivocal notice to Moving Defendants of her intent to request entry of default on November 1, 2025, precluding any claim of surprise. The Court accordingly DENIES the Motion. CONCLUSION The Court DENIES Defendants Caruso's Italian Kitchen and Hani Mammo 's Motion to Set Aside Defaults.

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