Judge: Anne Hwang, Case: 21STCV21426, Date: 2023-12-18 Tentative Ruling

Case Number: 21STCV21426    Hearing Date: December 18, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely.  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

BACKGROUND

On June 9, 2021, Plaintiff Menjahn Cherokee Yavon D Hill (“Plaintiff”) filed a complaint against Defendants Sy Wooden (“Defendant”) and Does 1 to 100 for injuries related to a motor vehicle accident. Defendant did not respond to the complaint and on September 8, 2022, the Court entered default against Defendant. On May 9, 2023, the Court granted default judgment against Defendant.

On July 12, 2023, non-party State Farm Mutual Automobile Insurance Company (“State Farm”) filed the instant motion for leave to file an answer in intervention on behalf of Defendant, its insured. State Farm also moves to set aside Defendant’s default. Plaintiff opposes and State Farm replies.

LEGAL STANDARD

Code of Civil Procedure section 387(d) provides, “[t]he court shall, upon timely application, permit a nonparty to intervene in the action or proceeding if either of the following conditions is satisfied: . . . (B) The person seeking intervention claims an interest relating to the property or transaction that is the subject of the action and that person is so situated that the disposition of the action may impair or impede that person's ability to protect that interest, unless that person's interest is adequately represented by one or more of the existing parties.” (Code. Civ. Proc. § 387(d)(1)(B).) Also, “[t]he court may, upon timely application, permit a nonparty to intervene in the action or proceeding if the person has an interest in the matter in litigation, or in the success of either of the parties, or an interest against both.” (Code. Civ. Proc. § 387(d)(2).)

“Pursuant to section 387 the trial court has discretion to permit a nonparty to intervene where the following factors are met: (1) the proper procedures have been followed; (2) the nonparty has a direct and immediate interest in the action; (3) the intervention will not enlarge the issues in the litigation; and (4) the reasons for the intervention outweigh any opposition by the parties presently in the action.” (Reliance Ins. Co. v. Superior Court (2000) 84 Cal.App.4th 383, 386.)

An insurance company may intervene in an action against its insured when the insured is not defending the action, in order to avoid harm to the insurer. (Western Heritage Ins. Co. v. Superior Court (2011) 199 Cal.App.4th 1196, 1205.) This right to intervene arises from Insurance Code section 11580(b)(2), which allows a judgment creditor for a personal injury action to recover the judgment against the insurer, pursuant to its policy limits. (Reliance Ins. Co. v. Superior Court (2000) 84 Cal.App.4th 383, 386; Ins. Code, § 11580(b)(2).) “[I]ntervention by an insurer is permitted where the insurer remains liable for any default judgment against the insured, and it has no means other than intervention to litigate liability or damage issues.” (Id. at 385.)

DISCUSSION

Leave to Intervene

State Farm first moves for leave to intervene. Here, State Farm argues that as Defendant’s insurer, it has a direct interest in this case since Plaintiff is seeking damages over an alleged motor vehicle accident. State Farm also shows that Defendant passed away on January 14, 2023, prior to entry of the default judgement. (Woodward Decl. ¶ 9, Exh. E.) Therefore, Defendant is unable to defend this action. Additionally, State Farm seeks to dispute the amount of damages Plaintiff is claiming. Therefore, it does not appear the issues in this case would be enlarged by intervention.

Plaintiff contends the Court should deny leave to intervene because State Farm untimely brought this motion. State Farm contends it did not learn of this case until May 11, 2023, when Plaintiff sent a letter stating that default judgment had been granted. (La Delfa Decl. ¶ 8–9.) Plaintiff contends that on Oct. 28, 2021, Plaintiff faxed a copy of the filed complaint to Kimberly Durden at State Farm. (Joseph Decl. ¶ 4, Exh. 2.) State Farm does not address this facsimile in their reply. However, even if State Farm did have notice of the complaint in October 2021, it does not show that it was aware that its interests were not adequately represented. “In determining whether intervention is timely, courts focus on the date the person attempting to intervene should have been aware his interest[s] would no longer be protected adequately by the parties, rather than the date the person learned of the litigation.” [citations cleaned up.] (Crestwood Behavioral Health, Inc. v. Lacy (2021) 70 Cal.App.5th 560, 575.) Here, there is no evidence that State Farm was aware that Defendant was not adequately defending this action before the May 11, 2023 letter. Therefore, this motion is timely. State Farm has properly attached a copy of its proposed answer in intervention. As a result, the motion for leave to intervene is granted.

Set Aside Default Judgment

Next, State Farm moves to set aside the default judgment entered against Defendant on May 9, 2023 pursuant to Code of Civil Procedure section 473(d).

“The insurer may either intervene in that action prior to judgment or move under Code of Civil Procedure section 473 to set aside the default judgment. [citation.] Where an insurer has failed to intervene in the underlying action or to move to set aside the default judgment, the insurer is bound by the default judgment.” (Reliance Ins. Co., supra, 84 Cal.App.4th at 387 [hereafter, “Reliance”].)

Code of Civil Procedure section 473(d) states “[t]he court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order.”

A motion to vacate a default and set aside a judgment under section 473(d) is the proper procedure to attack a default supported by evidence of service of process, but which is challenged for lack of personal jurisdiction. (Strathvale Holdings v. E.B.H. (2005) 126 Cal.App.4th 1241, 1249.)

“ ‘When a defendant challenges the court's personal jurisdiction, the plaintiff has the initial burden of “demonstrating facts justifying the exercise of jurisdiction.’ [citation.] When there is conflicting evidence, the trial court's factual determinations are not disturbed on appeal if supported by substantial evidence. [citation.]’” (Id. at 1250.) “[C]ompliance with the statutory procedures for service of process is essential to establish personal jurisdiction. [Citation.]”¿(Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1444.)

State Farm argues that Defendant did not receive actual notice of the summons and complaint, and therefore, default judgment should not have been granted. State Farm also argues that the Court lacked jurisdiction to enter judgment because Defendant passed away before default judgment was granted.

State Farm points to the Proof of Service of the Summons and Complaint on Defendant that shows personal service was effectuated on Sy Woodward who is described as “Male”, “130 lbs.” with “Blonde” hair. (Woodward Decl. ¶ 8, Exh. D.) State Farm argues this shows the summons was not actually served on Defendant because her information of the Traffic Collision Report (Exh. A) describes her as a female weighing 170 pounds, with gray hair and green eyes. The incident occurred on July 15, 2019. State Farm argues the mischaracterization is sufficient to set aside the default under American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383. There, the plaintiff did not carry its burden to show effective service where the proof of service described the defendant as “Asian with black hair, a description that [did] not fit defendant.” (Id. at 390 [“In the absence of evidence from the process server, the uncontradicted evidence is that the process server did not personally serve defendant.”].)

However, Plaintiff produces a declaration from the process server who served the summons, signed under penalty of perjury, that he served Sy Wooden, a female, but mistakenly labeled the proof of service as male. (Exh. 7, Kurzon Decl. ¶ 4.) State Farm does not dispute that the address in the Proof of Service was Defendant’s address. Yet, State Farm questions the reliability of this declaration since it was signed on December 5, 2023, when the service of process took place over a year earlier, on August 2, 2022. Additionally, the Kurzon declaration states that service was completed “on or about August 8, 2022.” (Id. ¶ 3.)  

Even when the showing under section 473 is not strong, when there is doubt about setting aside a default, such doubt should be resolved in favor of relief. (Rosenthal v. Garner (1983) 142 Cal.App.3d 891, 898.) The Court does not reach this issue because Defendant died before judgment was entered, as discussed below.

State Farm cites to Herring v. Peterson (1981) 116 Cal.App.3d 608 for the assertion that judgment should not be entered when a defendant dies and no personal representative is substituted. (Motion, 10.) This scenario is discussed in Grappo v. McMills (2017) 11 Cal.App.5th 996 where the court quotes Witkin: “Death occurring thereafter, before judgment, makes it improper to render judgment for or against the defendant without first taking the procedural step of substituting the executor or administrator. The failure to take this step is a departure from the mandatory requirements of the statute, and does result in a judgment for or against a person not a party. Hence, it seems clearly in excess of jurisdiction and subject to prevention or annulment by some form of direct attack. [citations omitted.]” (Id. at 1007.) Here, Defendant passed away before the default judgment was signed by the court. Plaintiff does not address Herring in the opposition. Therefore, judgment should not have been entered because Defendant had previously died. The motion to set aside Defendant’s default is granted.

CONCLUSION AND ORDER

            Accordingly, the Court grants State Farm Mutual Automobile Insurance Company’s motion for leave to intervene.

            State Farm Mutual Automobile Insurance Company shall file and serve its proposed answer-in-intervention within 10 days.

            The motion to set aside the default judgment of Defendant Sy Wooden is granted.

            The matter is set for a Final Status Conference on June 11, 2024 at 10:00 a.m. in Department 32 of the Spring Street Courthouse.

            The matter is set for trial on June 25, 2024 at 8:30 a.m. in Department 32 of the Spring Street Courthouse.

State Farm Mutual Automobile Insurance Company shall provide notice of the Court’s order and file a proof of service of such.