Case Number: 22STCV19126    Hearing Date: April 11, 2023    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

MOVING PARTY:              Defendant Cardinol Transportation, Inc.

OPPOSITION:                      [None]

Background

On June 10, 2022, Plaintiff Firefly Transportation LLC (“Plaintiff Firefly”) filed a Complaint against Defendant Cardinol Transportation Inc. (“Defendant Cardinol”) alleging a single claim for Declaratory Relief seeking a declaration of rights between the parties as to the validity of a contract between them, the issuance of a permanent injunction restraining the parties from repudiating the contract, costs of suit, and other relief as the Court deemed proper. The relevant handwritten contract is attached to the Complaint.

On November 28, 2022, Plaintiff Firefly made an ex parte application for an order directing service of summons on Defendant Cardinol by delivery of process to the Secretary of State.

On November 30, 2022, the Court granted the ex parte application.

On December 6, 2022, the complaint and summons were served on Greg Scarborough, the person authorized to accept service for the California Secretary of State.

On December 8, 2022, Plaintiff Firefly filed a corresponding proof of service with the Court.

On January 18, 2023, Plaintiff Firefly secured entry of default against Defendant Cardinol.

On February 17, 2023, Plaintiff Firefly filed a complete default judgment packet against Defendant Cardinol, including (1) Judicial Council form CIV-100, Request for Court Judgment, (2) Judicial Council form JUD-100, Judgment, (3) a declaration in support of default judgment, and (4) a proof of service showing service of these documents to a P.O Box in the name of Defendant Cardinol and located in Los Angeles, California. No Judicial Council form CIV-100, Request for Dismissal was required due to the lack of Doe defendants in the June 10, 2022 Complaint.

On March 10, 2022, the Court heard an Order to Show Cause re: Failure to File Proof of Service. Neither Plaintiff nor Defendant appeared at the hearing. Ultimately, the Court signed the proposed judgment filed by Plaintiff Firefly, thus entering default judgment against Defendant Cardinol.

On March 13, 2023, Defendant Cardinol’s counsel emailed Plaintiff’s counsel requesting a thirty-day extension of time to file responsive pleadings, with Plaintiff’s counsel responding that default was entered and default judgment already imposed on Defendant Cardinol. (Mot., Ex. D.)

On March 20, 2022, Defendant Cardinol filed a motion to set aside default judgment, seeking an order setting aside the January 18, 2023 entry of default and the resulting March 10, 2023 default judgment, and permitting the filing of a responsive pleading by Defendant Cardinol. A copy of a proposed answer by Defendant Cardinol is attached to the motion as Exhibit E.

The motion to set aside is made pursuant to Code of Civil Procedure section 473, subdivisions (b) and (d), and section 473.5 on the grounds that Defendant Cardinol was never properly served prior to the entry of default, making any resulting default and default judgment void and any failure to timely file a responsive pleading a result of mistake, inadvertence, surprise, or excusable neglect.

Plaintiff Firefly has not filed an opposition to the motion to set aside, and indeed on April 10, 2023, the parties filed a stipulation to set aside the default.

Defendant Cardinol’s motion is now before the Court.

Motion to Set Aside Default Judgment: GRANTED.

Section 473 subdivision (b) of the Code of Civil Procedure provides for both discretionary and mandatory relief from a judgment, dismissal, and/or order or other proceeding taken against a party through his or her mistake, inadvertence, surprise, or excusable neglect. (Code Civ. Proc., § 473, subd. (b) [mandatory relief more narrowly targeted to defaults, default judgments, and dismissals]; Pagnini v. Union Bank, N.A. (2018) 28 Cal.App.5th 298, 302.) The discretionary provision of section 473, subdivision (b), states in pertinent part that “[t]he court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect” and that “the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (Code Civ. Proc., § 473, subd. (b).)

Because Defendant Cardinol made its motion on March 20, 2023, a little over two months after the January 18, 2023 entry of default and ten days after the March 10, 2023 grant of default judgment, the motion is timely.

Moving to the substance of the motion to set aside, Defendant Cardinol argues in relevant part that its failure to file a responsive pleading in this action and entry of default and default judgment against it resulted from Defendant Cardinol failing to receive notice of this action until February 15, 2023, when Cardinol received from the Secretary of State the summons and complaint for this action, constituting mistake, inadvertence, surprise, and/or excusable neglect. (Mot., 3:7-9, 6:26-7:20, Broadway Decl., ¶ 7.)

The Court finds these grounds sufficiently support an order setting aside the January 18, 2023 entry of default and March 10, 2023 default judgment.

Plaintiff Firefly stipulates to set aside the default.

The Court accordingly GRANTS Defendant Cardinol’s motion to set aside the default judgment.

Conclusion

Defendant Cardinol Transportation, Inc.’s Motion Set Aside Default Judgment is GRANTED.

Defendant Cardinol Transportation, Inc. is to file its responsive pleading within 30 days.