Judge Christian R. Gullon, Case Number: 24PSCV00586, Date: 2024-05-29 Tentative Ruling

Judge: Christian R. Gullon, Case: 24PSCV00586, Date: 2024-05-29 Tentative Ruling

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MOTION FOR ORDERS SETTING ASIDE DEFAULT AND PERMITTING THE FILING OF A RESPONSIVE PLEADING is GRANTED because Defendant mistakenly believed State Farm was going to timely assign her file to counsel for handling of her case.

On February 26, 2024, Plaintiff Dong Woo Kim filed suit against Defendant Jennifer To Shen for (1) Motor Vehicle and (2) General Negligence for an accident that happened on 10/23/2022.

On March 8, 2024, Plaintiff filed a POS indicating that Defendant was served via personal service on March 2, 2024.

Defendant brings forth the motion pursuant to Code of Civil Procedure (CCP) section 473(b) on the ground the failure to timely file an answer was the result of mistake, inadvertence, and/or excusable neglect. (Motion p. 2.)

A mistake of fact occurs when a person understands the facts to be other than they are. (Opp. p. 5, citing Hodge Sheet Metal Products v. Palm Springs Riviera Hotel (1961) 189 Cal.App.2d 653, 656.) “Excusable neglect” refers to “‘that neglect which might have been the act of a reasonably prudent person under the same circumstances.’” (Lint v. Chisholm (1981) 121 Cal.App.3d 615, 620, citation omitted.) “Inadvertence is defined as lack of heedfulness or attentiveness, inattention, fault from negligence.” (Ibid, internal citation omitted.)

Defendant’s motion presents the following series of events which she argues supports relief:

- Within one week of being served, Defendant made copies of the documents and forwarded them to her State Farm agent to send to State Farm’s claims department.

- Defendant followed up with my State Farm agent twice over the next two weeks and was advised by the agent the documents had been forwarded to the appropriate person for handling State Farm claims. The agent told her that she would be contacted by State Farm about the case.

- On March 26, 2024, State Farm prepared the file so it could be assigned to the law firm Mark R. Weiner & Associates (the firm) to represent defendant in the action. The file, however, “fell through the cracks.” As a result, the firm did not receive the file until April 10, 2024.

- On April 10, 2024, upon receipt of the file from State Farm, the firm sent an e-mail to plaintiff’s counsel requesting an extension to answer the complaint since it had just received the file.

- On April 11, 2024, Kathy Schmeckpeper (attorney assigned to Defendant’s case) called plaintiff’s counsel on April 11, 2024, to discuss the case. Plaintiff’s counsel was not available so she left a detailed message explaining she had just received the file and requesting an extension to answer.

- On April 12, 2024, Defense Counsel followed up on the request for an extension. Plaintiff’s counsel responded via e-mail that default had been filed the previous day. Defense counsel attempted to call Plaintiff’s Counsel to see if he would agree to stipulate to setting aside the default, but Plaintiff’s Counsel did not call back. (See Motion pp. 3-4.)[1]

Here, based off the foregoing, the court determines that relief is warranted. Though Plaintiff argues that “Defendant failed to take any action within the legally prescribed timeframe” (Opp. p. 2:6-7, emphasis added) or that Defendant “Defendant chose to ignore the summons and complaint” (Opp. p. 6:21-22) or that “Defendant[‘s] failure to retain an attorney and file answer was not inadvertence but gross negligence” (Opp. p. 7:7-8) or that “By failing to do [ensure that her defense was managed properly and timely], she demonstrated a flagrant disregard of her duty to present a defense to the present action. (Opp. p. 7:24-25), the timeline completely undermines Plaintiff’s characterization. Defendant did act promptly by informing her insurance of the lawsuit and followed up twice on her claim. Sure, Defendant could have contacted her insurance everyday for thirty days starting from the date of service, but absent authority presented by Plaintiff that the statute requires such degree of attention, the court finds subscribing to Plaintiff’s position would “set a dangerous precedent.” (Opp. p. 8:24-25.)

To the extent that Plaintiff cites to Davis v. Thayer (1980) 113 Cal. App. 3d 892 and Huh v. Wang (2007) 158 Cal.App.4th 1406, none of those cases are apposite.[2]

For one, Davis included an admission by the defendant that he made no effort in defending the action. (Id. at pp. 905-906.) Here, however, Defendant did consult her insurance company about what to do (and insurance companies generally represent the insured). Thus, Plaintiff’s quotations are taken out of context, which is improper. As for Huh, that case was based upon an attorney’s failure to oppose a summary judgment motion. Here, however, any failure was at the expense of a third-party (the insurance company) not Defense counsel. Even assuming the facts were similar, there, the attorney was “aware of his failure” to file an opposition for months. (Id. at p. 1420, italics added.) Here, however, Defendant was not aware that her case had “fell through the cracks” yet did nothing.

If there is a case that is instructive, it is Rogalski v. Nabers Cadillac (1992) 11 Cal.App.4th 816, which was cited by Defendant. There, the defendants promptly forwarded the summons and complaint to their insurer for handling. The defendants in Rogalski only contacted their own attorney after the insurance company finally advised them coverage was being denied. The defendants’ counsel promptly called plaintiff’s counsel to ask for an extension only to be told the default papers had just been filed and plaintiff would not stipulate to set aside the default. The appellate court found defendants reasonably believed their insurer was handling the manner and would timely respond. (Id. at pp. 819-820.) Likewise, Defendant reasonably relied on State Farm to timely respond to Plaintiff’s complaint.[3] (See also Fasuyi, supra, 167 Cal.App.4th at p. 694 [“Something went awry after transmittal of the complaint to the insurance carrier, but precisely what is not known. This was a classic instance of mistake and inadvertence—but not on the part of [defendant], which did what all corporations do when served with a complaint; send it to the carrier for handling. Thus… there are abundant grounds for reversal under [section 473, subdivision (b)] because of mistake, inadvertence and excusable neglect.”].)

To the extent that Plaintiff argues that he will be highly prejudiced, its unclear how “further delays” will exacerbate “physical, emotional, and financial” harm to Plaintiff. (Opp. p. 10.) To the extent that Plaintiff argues financial stress as he will have “to pay for court fees and other related expenses as the case drags on,” this case is not dragging on. The case was recently filed and litigation in it of itself takes resources and energy, hence why many choose not to pursue litigation. Plaintiff has chosen to file a lawsuit and, as such, has consented to the conditions of litigation. If there were a party to be prejudiced, it would be Defendant who would be stripped of her opportunity to defend herself in an action.

To the extent that Plaintiff argues Defendant’s proposed answer does not set forth meritorious defenses, Defendant generally denies plaintiff’s allegations as permitted under Code of Civil Procedure section 431.30(b)(1). (Reply p. 5, See Shapiro v. Clark (2008) 164 Cal.App.4th 1128, 1144.) Should more detail be needed, other motions are procedurally more proper to address the matter.[4]

Ultimately, the law favors trial on the merits. (Reply p. 4, citing Bonzer v. City of Huntington Park (1993) 20 Cal.App.4th 1474, 1477-1478.) Any doubts in applying section 473 are to be resolved in favor of the party seeking relief and if that party has moved promptly for relief only slight evidence will justify an order granting the request. (Id. at p. 1478.)

Based on the foregoing, as “[p]enalizing [Defendant] for [Plaintiff’s] neglect would undermine the principles of fairness and justice” (Opp. p. 11:20-21), the court grants the motion, and the default is set aside.[5]

[1] As noted by Defendant, a party’s counsel has an ethical obligation when he knows the identity of the attorney representing defendant to warn that attorney before requesting entry of default. (Fasuyi v. Permatex, Inc. (2008) 167 Cal.App.4th 681, 701.) Plaintiff maintains that any failure to not inform Defense Counsel of the default was due a clerical error because the request for entry of default was submitted on 4/10/2024. (See Opp., Ex. 1.) It is unclear at what time the (initial) request for entry of default was made, but Defense Counsel’s initial email was made on 4/10/2024 at 11:25 AM. (See Motion, Schmeckpeper Decl., Ex. B, 24 of 46 of PDF.)

[2] The reply does not address either case.

[3] Plaintiff states that Rogalski is different because there the defendants promptly retained counsel to request an extension, which this Defendant could have done it. (Opp. p. 7.) As stated before, many if not all insurance policies have a provision that the insurance company will defend a party in the event of a lawsuit, so the insurance company will hire and pay for a lawyer to defend the case against the named defendant. Thus, one need not hire an attorney.

[4] Defendant’s declaration states her husband, i.e., a third-party witness, observed Plaintiff at the scene of the accident and he did not appear injured.

[5] Defendant has filed a proposed answer to the complaint, but the court docket does not provide that a proposed order as to this motion has been filed.