Judge: Anne Hwang, Case: 23STCV16815, Date: 2024-07-11 Tentative Ruling

Case Number: 23STCV16815    Hearing Date: July 11, 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 July 18, 2023, Plaintiff Alex Skinner (“Plaintiff”) filed a complaint against Defendant Sergio Orozco Ruiz, and Does 1 to 20 for negligence related to a motor vehicle accident.

On January 29, 2024, Plaintiff filed a proof of service of the complaint and summons on Defendant Sergio Orozco Ruiz (“Defendant”). The proof of service shows the complaint was personally served on July 22, 2023. Also on January 29, 2024, the Court entered default against Defendant.

On May 30, 2024, Defendant filed the instant motion to set aside the default under Code of Civil Procedure section 473(b). No opposition has been filed.

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.

A mistake is a basis for relief under section 473 when by reason of the mistake a party failed to make a timely response.  Surprise occurs when a party is unexpectedly placed in a position to his injury without any negligence of his own. Excusable neglect is a basis for relief when the party has shown some reasonable excuse for the default.  (Credit Managers Association of California v. National Independent Business Alliance (1984) 162 Cal.App.3d 1166, 1173; Davis v. Thayer (1980) 113 Cal.App.3d 892, 905.)  Under Code of Civil Procedure section 473, the moving party bears the burden of demonstrating an excusable ground, such as fraud or mistake, justifying a court’s vacating a judgment.  (Basinger v. Roger & Wells (1990) 220 Cal.App.3d 16, 23–24.)   

Relief under this section is mandatory when based on an attorney affidavit of fault; otherwise, it is discretionary. (Id.) However mandatory relief is only available when a party fails to oppose a dismissal motion (“which are procedurally equivalent to a default”). (Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 620.) The mandatory relief provision does not apply to dismissals for “failure to prosecute [citations omitted], dismissals for failure to serve a complaint within three years [citations omitted], dismissals based on running of the statute of limitations [citations omitted], and voluntary dismissals entered pursuant to settlement [citations omitted].” (Id.)

DISCUSSION

            Procedurally, the present motion is timely because it was filed within six months after default was entered.

The Declaration of Mary Margaryan, Defendant’s counsel, states she was assigned as the handling attorney for this case on October 6, 2023. (Margaryan Decl. ¶ 3.) Although the proof of service shows that Defendant was already served the summons and complaint in July 2023, Ms. Margaryan contends that Defendant had informed his insurance carrier that the complaint and summons were left in his mailbox while he was out of the country. (Id. ¶ 3.) Ms. Margaryan attempted to contact Defendant to verify if he was served the summons and complaint but was unsuccessful. (Id. ¶ 4.) Afterward, her office continued to periodically check the Court file for proof of service of the summons. (Id. ¶ 5.) She did not discover the proof of service or request for entry of default until February 12, 2024. She also states: “At no time before January 29, 2024, did plaintiff’s counsel contact the carrier to discuss whether or not an answer would be filed on behalf of the defendant.” (Id. ¶ 8.) She further declares: “Because I had been operating on the belief that defendant had not been properly served and was waiting for a proof of service showing proper service to be filed and because I further incorrectly thought the Answer I filed was timely, the failure to timely respond to the complaint and the resulting entry of default were solely the result of my mistake, inadvertence, and/or neglect.” (Id. ¶ 9.)

Defendant has attached a copy of his proposed answer and there is no opposition. Therefore, based on the above, it appears that Defendant’s counsel failed to file a responsive pleading due to inadvertence or mistake, since she mistakenly believed that Defendant had not been served.

            Therefore, the motion to set aside the default entered on January 29, 2024 is granted.

CONCLUSION AND ORDER

Therefore, the Court GRANTS Defendant Sergio Orozco Ruiz’s motion to set aside the default entered on January 29, 2024. Defendant shall file and serve his proposed answer within five days.

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