City and County of San Francisco v. Bato CA1/3

Filed 6/27/23 City and County of San Francisco v. Bato CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

CITY AND COUNTY OF SAN FRANCISCO et al., Plaintiffs and Respondents, A164141

v. (City & County of San Francisco ANGELICA BATO, Super. Ct. No. CGC-18-564770) Defendant and Appellant.

Defendant Angelica Bato appeals a judgment entered after the trial court denied her motion to set aside entry of default. She brought the motion more than a year after default was entered, and the trial court denied it on the grounds that the lengthy delay showed a lack of diligence and that Bato had not shown she had a meritorious defense to the action. On appeal, Bato raises a variety of arguments for why the default should not have been entered, but she does not address the bases for the trial court’s decision. We affirm. FACTUAL AND PROCEDURAL BACKGROUND The City and County of San Francisco (the City) brought this action against Bato and others on March 5, 2018, alleging they owned or operated an illegal gambling establishment and asserting causes of action for red light

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abatement (Pen. Code, §§ 11225–11235), public nuisance, non-compliance with the City’s building and planning codes, and unlawful business practices (Bus. & Prof. Code, §§ 17200–17210). Bato was served with the complaint by mail, and her counsel, Andrew Dimitriou, acknowledged receipt of the summons and complaint on February 26, 2019. The City inquired repeatedly about when Dimitriou would file Bato’s answer; Dimitriou told the City’s counsel on multiple occasions that he would be filing a verified answer for Bato, and on April 17, 2019 he sent a copy of an answer to the City’s counsel. He did not, however, file the answer with the court. The caption indicated it was filed by “Attorneys for Defendant Angela Bato,” and the first page of the answer began, “Defendant, Angela Bato, . . . hereby answers the Complaint,” but the verification was signed “Angelica Bato.” (Italics added.) A case management conference was scheduled for June 12, 2019, but on May 22, 2019, the trial court delayed the conference until July 17 “to obtain an answer[] from, or enter default[] against, defendant[] ANGELICA C BATO.” In a June 26, 2019 case management statement, the City’s attorney explained that Dimitriou had not responded to multiple emails asking whether he intended to file an answer, and further explained that “[a]s a professional courtesy I have not sought a default against A. Bato yet.” The same day, Dimitriou told the City’s counsel he would be out of the office until July 5 and would file an answer upon his return. The trial court cancelled the scheduled July 17, 2019 case management conference and issued an order to show cause directing the City to appear on August 27, 2019 to show cause why the action should not be dismissed, or sanctions imposed for failure to obtain an answer from, or enter default against, Bato.