Judge: Audra Mori, Case: 20STCV00982, Date: 2022-09-02 Tentative Ruling

Case Number: 20STCV00982    Hearing Date: September 2, 2022    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

Plaintiff Aura Valdez Lopez (“Plaintiff”) filed this action against Defendants Fernando C. Cuevas (“Cuevas”), Los Angeles Police Department, and City of Los Angeles (the “City”) for damages arising from a motor vehicle accident.  Cuevas is in default.

Om July 21, 2022, Defendants Cuevas and the City (collectively, “Defendants”) filed the instant motion for an order advancing the hearing date on Cuevas’s motion to set aside default.  Plaintiff opposes the motion.  Any reply was due by August 26, 2022; as of August 30, 2022, no reply has been received. 

Defendants assert that Cuevas was never served with the summons and complaint, and that Cuevas has filed a motion to set aside the default entered against him, which is currently set for hearing on December 16, 2022, after the current trial date of October 31, 2022.  Defendants aver December 16 was the first earliest available hearing date.  Further, Defendants assert that Cuevas has already filed his motion, and the parties will not be prejudiced if the hearing for the motion to set aside default is advanced. 

In opposition, Plaintiff contends both that Cuevas has already made a general appearance in this action, and that Cuevas has not submitted any evidence to establish that service on him was improper.  However, the Court does not make any determinations concerning the Cuevas’s motion to set aside default or the validity of service of the summons and complaint on Cuevas at this time.  Rather, Defendants are seeking solely to advance the hearing date for the motion to set aside default, which Plaintiff does not directly oppose.

The court has the power to “control in furtherance of justice, the conduct of its ministerial officers, and of all other persons in any manner connected with a judicial proceeding before it, in every matter pertaining thereto.”  (CCP § 128(5).) 

The Standing Order Re: Personal Injury Procedures at the Spring Street Courthouse provides that the PI courts do not regard the court’s unavailability for motion hearings as an immediate danger or threat of irreparable harm.  To the extent contends that a hearing date will interfere with the trial date, the party should normally seek to file a motion to continue trial instead of seeking to advance or shorten the hearing time on its motion.  However, Cuevas is currently in default and no authority is provided showing that Cuevas has the ability to seek a trial continuance while in default. (See Christerson v. French (1919) 180 Cal. 523, 525 [“A defendant against whom a default is entered is out of court and is not entitled to take any further steps in the cause affecting plaintiff's right of action.”].)

Upon reflection, the under the circumstances presented, the Court find good cause to exercise its discretion to advance the hearing date on Cuevas’s motion to set aside default.  The hearing on Cuevas’s motion to set aside is advanced to this date and continued to ___________________ at 1:30 p.m.

Defendant is ordered to give notice. 

PLEASE TAKE NOTICE:

• Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement.
• If a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept31@lacourt.org with the Subject line “SUBMIT” followed by the case number.  The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.  
• Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.  You should assume that others may appear at the hearing to argue.  
• If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.  After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave. 

Dated 2^nd day of September 2022