Judge Audra Mori, Case 20STCV21878 2023-01-10 Tentative Ruling

On June 10, 2020, Plaintiff Edward Berg (“Plaintiff”) filed this action against defendant Avis Rent A Car Systems, LLC (“Avis”), erroneously named and served herein as Avis Budget Group, Inc. for damages arising out of a motor vehicle accident. Plaintiff has filed an Amendment to Complaint naming Maria Derbigny (“Derbigny”) as Doe 1.

Avis answered the complaint on August 27, 2020, and Plaintiff later served the summons by publication on Derbigny. (Proofs of Publication filed Feb. 7, 2022 and April 15, 2022.) Plaintiff separately served Derbigny with Plaintiff’s statement of damages by publication. (Proof of Publication filed June 2, 2022.) On June 28, 2022, Plaintiff had Derbigny’s default entered by the Court Clerk.

On Jut 26, 2022, Avis and Derbigny (collectively, “Defendants”) moved for an order setting aside the default entered against Derbigny. Plaintiff opposes the motion, and Defendants filed a reply.

Defendants assert that Avis’s counsel was in contact with Plaintiff’s counsel and requested on several occasions that Plaintiff’s counsel advise defense counsel when Plaintiff served the summons and complaint on Derbigny. Defendants state that after Avis provided Derbigny’s name and address to Plaintiff, Plaintiff’s counsel proceeded with quiet speed to serve Derbigny by publication and have Derbigny’s default entered. Defendants assert that defense counsel was never advised that Plaintiff had served Derbigny or had her default entered, even though Plaintiff’s counsel knew that defense counsel would be representing both Avis and Derbigny in this matter. Defendants contend that Derbigny’s default was the result of defense counsel’s neglect.

In opposition, Plaintiff argues that every procedural step was taken to ensure Derbigny had proper notice, and that Avis was nothing more than Derbigny’s insurer. Plaintiff argues that Derbigny is not entitled to relief under CCP §§ 473(b) or 473.5.

In reply, Defendants contend that relief is mandatory under CCP § 473(b), and dispute that proper notice was given of this case. Further, Defendants contend that Plaintiff’s counsel had an ethical duty to warn opposing counsel of the intent to have Derbigny’s default entered, and Plaintiff’s counsel’s failure to do so further supports setting aside the default against Derbigny.

The 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. Application for this relief … shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken. … Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, …

“To obtain mandatory relief under section 473, plaintiffs' counsel need not show that his or her mistake, inadvertence, surprise or neglect was excusable. No reason need be given for the existence of one of these circumstances. Attestation that one of these reasons existed is sufficient to obtain relief, unless the trial court finds that the dismissal did not occur because of these reasons.” (Graham v. Beers (1994) 30 Cal.App.4th 1656, 1660; accord. Leader v. Health Indus. of America, Inc. (2001) 89 Cal.App.4th 603, 616 [“The range of attorney conduct for which relief can be granted in the mandatory provision is broader than that in the discretionary provision, and includes inexcusable neglect”.].)

Additionally, CCP § 473.5 provides that when service of summons has not resulted in actual notice to a party in time to defend an action, resulting in the entry of a default judgment, the party may file a motion to set aside the judgment. (CCP § 473.5(a).) The motion must be served within a reasonable time and may not exceed two years after the entry of the default judgment. (Id.)

Here, Defendants’ motion was timely filed less than one month after Derbigny’s default was entered. The evidence shows that after Avis answered the complaint, Defendants’ counsel was in contact with Plaintiff’s counsel concerning Derbigny’s involvement in this matter since at least September 21, 2020. (Mot. Notice of Lodgment Exhibit D.) Defendants’ counsel expressly requested that Plaintiff’s counsel inform Avis when Derbigny was served, and Avis provided Derbigny’s contact information, including her address, to Plaintiff in discovery responses. (Id. at Exh. D-E.) In a letter dated July 6, 2021, Defendants’ counsel again requested that Plaintiff’s counsel inform Defendants’ counsel if Derbigny had yet been served. (Id. at Exh. F.) There is no evidence indicating that Plaintiff’s counsel ever responded to defense counsel’s requests concerning the status of service on Derbigny. Rather, Defendants’ evidence shows that defense counsel was informed on or about July 6, 2022, that Derbigny’s default had already been entered. (Id. at Exh. G.) Defendants aver that Plaintiff’s counsel was aware that Defendants’ counsel would be representing both Avis and Derbigny, but Plaintiff did not serve notice of any of the court filings on defense counsel. Further, defense counsel attests that the Derbigny’s default was entered because of Defendants’ counsel’s neglect in failing to prevent the entry of default while defense counsel was waiting for notice that Derbigny had been properly served with the summons and complaint. (Mot. Liebman Decl. ¶¶ 3-4, 10-14.) Defense counsel’s declaration establishes that Derbigny’s default was the result of defense counsel’s neglect in waiting to be notified of service of the summons and complaint by Plaintiff. (CCP § 473(b).)

Moreover, Plaintiff does not deny being aware that Avis was Derbigny’s insurer at the time that Plaintiff’s counsel was in contact with defense counsel, but Plaintiff’s counsel did not notify defense counsel that Plaintiff was seeking to have Derbigny’s default entered.[1] (Lasalle v. Vogel (2019) 36 Cal.App.5th 127, 137 [“The ethical obligation to warn opposing counsel of an intent to take a default is now reinforced by a statutory policy that all parties ‘cooperate in bringing the action to trial or other disposition.’ ([CCP] § 583.130.)”].) Although Plaintiff’s counsel was in contact with defense counsel since at least September 2020, there is no evidence showing that Plaintiff ever notified defense counsel before taking Derbigny’s default, despite repeated requests from defense counsel to be informed when Derbigny was served with the summons and complaint. “Warning and notice play a major role” in assessing whether a default should be set aside. (Lasalle, 36 Cal.App.5th at 135.) “Unintended defaults inevitably result in motions to overturn them (this case, exemplary in no other way, demonstrates well the resources consumed by such motions).” (Id.) There is no evidence that Plaintiff made any attempt to give appropriate notice that it intended to obtain the default against Derbigny, although Plaintiff’s counsel communicated multiple times with Derbigny’s insurer prior to the default being taken. (Id. [“If you're representing plaintiff, and have had any contact with a lawyer representing defendant, don't even attempt to get a default entered without first giving such lawyer written notice of your intent to request entry of default, and a reasonable time within which defendant's pleading must be filed to prevent your doing so.” (quoting The Rutter Group practice guide)].) Pursuant to the policy favoring deposing of cases of their merits, these facts warrant setting aside the default entered against Defendant. (Taliaferro v. Taliaferro (1963) 217 Cal.App.2d 216, 220 [“It is the policy of the law that every case should be heard upon the merits where possible; that a motion to set aside a default is one addressed to the sound discretion of the court; that the ruling on such motion will not be reversed in the absence of a clear showing of abuse of discretion; that section 473 is a remedial provision to be liberally construed to the end that cases be disposed of upon their merits.”].)

Additionally, as further grounds to set aside the default, Derbigny submits a declaration under penalty of perjury stating that she received notice of being served by publication on July 14, 2022, through a letter from defense counsel. (Mot. Derbigny Decl. ¶ 5.) Derbigny further asserts that she has not attempted to evade service, and she confirms that her address is the same address provided by Avis to Plaintiff. (Id. at ¶¶ 3-4.) Notably, the request for entry of default provides that a copy of the request was mailed to a different address. Defendants’ evidence is sufficient to show that Derbigny did not have actual notice of the summons and complaint, and the lack of notice was not caused by Derbigny’s avoidance of service. (See Anastos v. Lee (2004) 118 Cal.App.4th 1314, 1319.) Plaintiff does not otherwise submit any evidence showing that Derbigny had actual notice of this action.

Based on the foregoing, Defendants’ motion to set aside the default against Derbigny is granted.

Hon. Audra Mori

Judge of the Superior Court

[1] The Court’s records show that Plaintiff requested Derbigny’s be entered multiple times between February and June 2022.