Judge: Anne Hwang, Case: 22STCV29178, Date: 2024-05-16 Tentative Ruling

Case Number: 22STCV29178    Hearing Date: May 16, 2024    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 September 8, 2022, Plaintiff Marta Reinoso (“Plaintiff”) filed a complaint against Defendants City of Los Angeles (“Defendant”), Bradley Davis, and Does 1 to 20, for injuries related to a motor vehicle accident.

On March 3, 2023, Plaintiff filed a proof of service of the summons and complaint on Defendant City of Los Angeles (“Defendant”).

On March 21, 2023, default was entered against Defendant.

On March 7, 2024, Defendant filed the instant motion to vacate and set aside the default under Code of Civil Procedure section 473(b) and on equitable grounds. Default judgment has not been granted against Defendant. Plaintiff opposes this motion.  

LEGAL STANDARD

Under Code of Civil Procedure section 473(b), the Court may relieve a party from a default taken against him through his mistake, inadvertence, surprise, or excusable neglect.  This application must be filed no more than six months after entry of the order from which relief is sought, and must contain an affidavit of fault demonstrating the moving party’s mistake, inadvertence, surprise, or excusable neglect.

“After six months from default, a trial court may still vacate a default on equitable ground even if statutory relief is unavailable.”¿ (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981.)¿ A party may obtain equitable relief from an entry of dismissal based on an extrinsic mistake when the moving party: (1) has a meritorious case, (2) articulates a satisfactory excuse for not presenting a defense to the original action, and (3) demonstrates diligence in seeking to set aside the dismissal once discovered.¿ (Id. at p. 982.)¿¿ 

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An extrinsic mistake is broadly defined “. . . to encompass almost any set of extrinsic circumstances which deprive a party of a fair adversary hearing. It does not seem to matter if the particular circumstances qualify as fraudulent or mistaken in the strict sense.”¿(In re Marriage of Park (1980) 27 Cal.3d 337, 342.) An ‘extrinsic’ mistake means a mistake that deprived a party of the opportunity to present a claim or defense while an ‘intrinsic’ mistake is one that goes to the merits of a proceeding.¿ (In re Marriage of Stevenot (1984) 154 Cal.App.3d 1051, 1064-1065.)¿¿ 

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A default cannot be set aside when the complaining party’s negligence contributed to the rise to the fraud or mistake.¿(See Kulchar v. Kulchar (1969) 1 Cal.3d 467, 473-474 [complaining party’s failure to investigate and assemble evidence at trial as grounds for denying equitable relief sought].)¿An extrinsic mistake may result from a disability when the disability renders the party incompetent or incapacitated such that it deprives the party from asserting a claim or defense. (See id. at pp. 471-472.)¿ 

DISCUSSION

            Procedurally, the present motion is not timely because it was filed beyond six months after default was entered. (See Jimenez v. Chavez (2023) 97 Cal.App.5th 50, 58 [the six-month limitations periods of the mandatory and the discretionary relief provisions of section 473(b) mean the longer of six calendar months or 182 days].) Here, 6 months from the entry of default on March 21, 2023, was September 21, 2023. Defendant filed this motion on March 7, 2024. 

            In the alternative, Defendant moves for equitable relief. Defendant first argues it has a meritorious case since, as a public entity, it has statutory immunity defenses. Additionally, liability of the accident is disputed. Defendant notes the traffic incident report states that Plaintiff collided with a Los Angeles Police Department vehicle because Plaintiff was following too closely. (Ticas Decl. ¶ 2, Exh. 1, p. 7.) Based on this, it appears Defendant has a meritorious case.

Second, Defendant argues that throughout the last few years, it has experienced a shortage of staff which resulted in not timely answering the complaint in this case. (Miera Decl. ¶¶ 2.) Defendant offers the declaration of Anthony M. Miera, managing senior Assistant City Attorney, to explain the mistakes which caused this default. Mr. Miera states that the General Litigation Division has been understaffed due to death, retirement, and resignation from more senior attorneys. (Miera Decl. ¶ 10.) Although Defendant has hired more attorneys from varying experiences, he states: “[t]his case has slipped through the cracks due to the severe number of cases and was not answered due to mistake, inadvertence or excusable neglect. The unique experiences of lack of staffing over the past six months led to this mistake. I apologize to the Court and to Plaintiff’s Counsel for this error on my part and on the part of the office. The lack of staff in this office has severely affected our ability to review the files. Over the past six months, nearly all of our attorneys have had COVID and have been unavailable for between two to four weeks each.” (Id. ¶ 12–13.)

Third, the case was transferred to current counsel on May 1, 2023. (Ticas Decl. ¶ 3.) Counsel for Defendant contends she did not learn of the entry of default until March 1, 2024, when she viewed the clerk’s notice of rejection of a stipulation to continue trial. (Notice of Rejection, 2/23/24; Ticas Decl. ¶ 6.) Additionally, Defendant notes that the Court accepted its answer filed on March 28, 2023. (Miera Decl. ¶ 6.) Defendant also argues that the parties have continued to conduct discovery and stipulate to continuances despite the entry of default in March 2023. (Ticas Decl. ¶ 4.) Defendant contends it has relied on this conduct to mean that Plaintiff did not intend to act on the default. (Id. ¶ 5.) However, Plaintiff would not stipulate to set aside the default.

In opposition, Plaintiff contends that Defendant knew of the default earlier. On March 26, 2023, Anthony Miera emailed Plaintiff’s counsel requesting to stipulate to set aside the default. (Rogal Decl. ¶ 5, Exh. 3.) Plaintiff asserts he left a voicemail and email for Mr. Miera on March 28, 2023 requesting a call back to discuss the case. (Id. ¶ 6.) Instead, Defendant emailed Plaintiff its answer but never discussed the stipulation further. (Id.) Plaintiff’s counsel asserts that in November 2023, he again emailed and called Mr. Miera informing him that Defendant was still in default. (Id. ¶ 7–8.) Plaintiff also asserts that on February 9, 2024, Plaintiff informed Ms. Ticas that Defendant was in default. (Id. ¶ 9.) Ms. Ticas responded that she believed Defendant was not in default since the Court had accepted the answer. (Id.)

Though Defendant argues that Plaintiff did not provide notice of the entry of default, item 6 of the entry of default request filed on March 21, 2023, shows that notice was mailed pursuant to Code of Civil Procedure section 587.[1] Section 587 also explicitly provides: “The nonreceipt of the notice shall not invalidate or constitute ground for setting aside any judgment.” Defendant points to no authority that Plaintiff was required to serve notice again, once the default was entered.

            Here, Defendant appears to argue that filing a late answer in this case was due to staffing shortages in its office. The fact that the shortages were due to deaths, retirements, resignations, and COVID illnesses, suggest that it was an extrinsic mistake separate from the merits of the case. However, Plaintiff sets forth evidence questioning whether Defendant was diligent in bringing this motion. Defendant has not filed a reply and thus fails to dispute that Mr. Miera acknowledged the default on March 26, 2023. (See Rogal Decl., Exh. 3.) However, Defendant’s current counsel, Ms. Ticas contends it was reasonable to assume the default was not entered since Defendant’s answer was filed after default was entered, but before she was assigned this case. Also, though Plaintiff contends that she informed Defendant of the default, Plaintiff does not dispute that she continued to engage in discovery during this time. Therefore, based on the evidence, it appears Defendant acted diligently once it became aware of the default and that Plaintiff would not stipulate to set it aside. Accordingly, because Defendant has shown it has a meritorious case, a satisfactory excuse for not filing a responsive pleading earlier, and for acting diligently to set aside this default, the motion is granted.

CONCLUSION AND ORDER

Therefore, the Court GRANTS the motion to set aside the default entered on March 21, 2023.

Defendant to provide notice and file a proof of service of such.