Motion to Set Aside/Vacate Default
Based on all the above, the demurrer to the ninth through fifteenth causes of action is sustained.
Plaintiff concedes the UCL claim is “derivative of the underlying Labor Code violations.” (Opposition: 12:24.) “Where a UCL Claim is derivative of another claim that fails as a matter of law, the UCL claim must similarly fail.” (Nein v. HostPro, Inc. (2009) 174 Cal.App.4th 833, 841.)
Based on the above, the demurrer to the sixteenth cause of action is sustained.
Lastly, the burden is on the Plaintiff to show the manner in which she may amend, and how the amendment will change the legal effect of the pleading. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) As Plaintiff does not identify any additional facts which may be alleged, leave to amend is denied.
Additionally, given that Plaintiff has not identified any additional facts which may be alleged, it appears all relevant facts have already been stated. “Leave to amend should be denied where the facts are not in dispute and the nature of the claim is clear, but no liability exist under substantive law.” (Lawrence v. Bank of Am. (1985) 163 Cal.App.3d 431, 436.)
55 Dascanio vs. Arsenian Motion to Set Aside/Vacate Default
22-01257590 The unopposed Motion to Set Aside Default brought by Cross-Defendants Benjamin Arsenian and the Law Offices of Benjamin Arsenian, PC, is GRANTED, pursuant to Code of Civil Procedure section 473, subdivision (b).
In this case, default was entered against moving Cross-Defendant on December 3, 2025 (ROA No. 857) and the instant motion was filed timely, less than a week later, on December 9, 2025. (ROA No. 864.) In addition to the above, the motion is accompanied by a proposed Answer, as required. (See ¶4 of Beggs Declaration and Exhibit 1 thereto; See also Code Civ. Proc., § 473
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“The granting of relief under section 473 rests primarily within the discretion of the trial court.” (Lane v. Pacific Greyhound Lines (1947) 30 Cal.2d 914, 917.) “Moreover, the inadvertent entry of an erroneous date in a journal of proceedings kept by an attorney has been held to justify relief where, as here, the defaulting party acted promptly.” (Ibid; See also Nilsson v. City of Los Angeles (1967) 249 Cal.App.2d 976, 980 [“calendar errors by an attorney or a member of his staff are, under appropriate circumstances, excusable.”])
Here, Counsel for Cross-Defendant declares he mis-calendared the responsive date as November 17, 2026, rather than 2025. (¶2 of Beggs Declaration.) As a result of this mistake, Counsel did not receive a calendar reminder and neglected to timely file his Answer. (Ibid.)
The above sufficiently qualifies as “excusable neglect.”
Cross-Defendants Benjamin Arsenian and the Law Offices of Benjamin Arsenian, PC shall file and serve their proposed Answer, within 10 days of this order.