Judge: David A. Hoffer, Case: 30-2018-01039015, Date: 2023-05-22 Tentative Ruling

Before the Court at present is a Motion to Set Aside Entry of Default, filed 4/18/23 by Defendant Surf City Auto Group dba Huntington Beach CDJ Ram (“Surf City”), concerning the default obtained by Plaintiff Anthony Zavala on 10/28/19, as to Surf City.

The Motion is GRANTED IN PART.  The evidence presented reflects that on 1/27/20 (shortly after entry of the default at issue), Plaintiff accepted a C.C.P. § 998 Offer from the other defendant in the case, FCA US LLC (“FCA”), which required “dismissal of this action with prejudice in its entirety” and stated that the settlement was as to, among other things, any “damage Plaintiff claims in this action.”  Plaintiff filed a notice on 6/29/20, reflecting the acceptance of that offer.  Judgment for Plaintiff was subsequently entered on 6/17/21, pursuant thereto. Plaintiff then filed motions as to his claims for attorney’s fees and prejudgment interest, which were decided on 12/20/21, and Plaintiff then appealed from the judgment.  Yet after the appeal was dismissed and Remittitur issued, Plaintiff requested entry of a default judgment against Surf City, based on the same claims. Under these circumstances, as Plaintiff’s conduct for years prior to the request for default judgment demonstrated that the entire action had been resolved,  the Court finds that relief from default is warranted on equitable grounds. (See Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981 [“after six months from entry of default, a trial court may still vacate a default on equitable grounds even if statutory relief is unavailable.”].) Surf City’s request for relief from default is therefore GRANTED.  Surf City is to file its responsive pleading within 10 days.

However, Surf City’s request for an order of dismissal based on the settlement and resulting judgment is DENIED without prejudice. Until relief from default is obtained, the defaulted party may not  seek any other relief in the action. (Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc. (1984) 155 Cal.App.3d 381, 385-386.) The request for dismissal is therefore premature. However, Surf City may present such a request anew in any responsive pleading or subsequent motion, as appropriate.

Surf City’s Request for Judicial Notice is GRANTED as to the existence of the attached records under Ev. Code §452(d). Exhibits 1 and 3 are court records, and although Ex. 2 is itself not a court record, it is part of the record as reflected in ROA 52.

Counsel for Surf City is ordered to give notice of this ruling.