Judge: David B. Gelfound, Case: 24CHCV01918, Date: 2025-02-24 Tentative Ruling

Case Number: 24CHCV01918    Hearing Date: February 24, 2025    Dept: F49

LOS ANGELES SUPERIOR COURT

NORTH VALLEY DISTRICT

DEPARTMENT F49

MOTION TO SET ASIDE DEFAULT

Motion filed: 1/13/25

MOVING PARTY: Defendant AML Trucking Inc.

RESPONDING PARTY: Plaintiff Azita Setarehnejad.

NOTICE: OK.

RELIEF REQUESTED: An order of this Court vacating the Default entered on November 7, 2024.

TENTATIVE RULING: The motion is GRANTED.

BACKGROUND

This action arises from alleged personal injuries that Plaintiff sustained in a motor vehicle collision on June 10, 2022.

On May 20, 2024, Plaintiff Azita Setarehnejad (“Plaintiff”) filed a Complaint against Defendant AML Trucking Inc. (“Defendant” or “AML Trucking”), and Does 1 to 20, alleging two causes of action: (1) Motor Vehicle, and (2) General Negligence.

On November 7, 2024, Plaintiff filed a Request for Entry of Default against Defendant, which was entered by the Court Clerk on the same day.

On January 13, 2025, Defendant filed the instant Motion to Set Aside Default (the “Motion”). Subsequently, Plaintiff filed an Opposition on February 5, 2025, and Defendant submitted its Reply on February 14, 2025.

ANALYSIS

Code of Civil Procedure section 473, subdivision (b) provides for both discretionary and mandatory relief. (Pagnini v. Union Bank, N.A. (2018) 28 Cal.App.5th 298, 302.) The discretionary provision states in relevant part: 

“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 accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise 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).)

¿ 

A.    Motion to Set Aside Default

Defendant moves for relief from a default entered against it under the discretionary provision of Code of Civil Procedure section 473, subdivision (b), which applies when the moving party demonstrates “mistake, inadvertence, surprise, or excusable neglect.”

Defendant’s counsel was retained by Defendant on June 14, 2024. (Mijanovic Decl. ¶ 2.) Defendant does not dispute that substituted service was completed and became effective on September 12, 2024. (Id. ¶ 4.) However, Defendant’s counsel asserts that the prior handling attorney, Amy Powers, departed the firm in August 2024, and Defendant’s contact for the matter only had Ms. Powers’s contact information. Upon Ms. Powers’ departure, her email and telephone number became inactive. (Id. ¶ 3.)

On November 20, 2024, counsel Annette F. Mijanovic (“Mijanovic”) checked the court’s online docket to check on the status of the calendar, including the status of whether any proofs of service had been filed. On that date, Mijanovic discovered that default had been entered against Defendant on November 7, 2024. (Id. ¶ 4.) Mijanovic immediately contacted Plaintiff’s counsel by email on the same day, November 20, 2024, advising them of Defendant’s representation and intent to answer the Complaint. (Id. ¶ 5.)

Defendant cites Bernards v. Grey (1950) 97 Cal.App.2d 679 (Bernards), arguing that the loss of communication due to the departure of the prior handling attorney constitutes excusable neglect and that Defendant acted promptly upon learning of the default. (Mot. at p. 5.)

Additionally, Defendant asserts that Plaintiff would suffer no prejudice if the default were set aside, as Plaintiff has not yet pursued efforts to obtain a default judgment and trial has not been set. (Mot. at p. 5.)

The Court finds Defendant’s showing sufficient to warrant relief under Code of Civil Procedure section 473, subdivision (b).

First, the Motion is timely. The default was entered on November 7, 2024, establishing the six-month deadline for filing the instant Motion as May 7, 2025. The Motion was filed on January 13, 2025, well within the applicable time limit. Furthermore, Defendant’s counsel states that upon learning the default entry, she immediately contacted Plaintiff’s counsel and requested a stipulation to set aside the default. However, Plaintiff’s counsel did not confirm whether a stipulation was agreeable before the Motion was filed. (Mijanovic Decl. ¶ 6.) Based on these facts, the Court determines that Defendant has exercised diligence in bringing the Motion within a reasonable time.

Second, Defendant’s evidence sufficiently demonstrates “mistake, inadvertence, surprise, or excusable neglect.”

In Bernards v. Grey, supra, the Court of Appeal upheld the trial court’s granting a motion to vacate a default upon which no judgment has been given. In Bernards, the defendant, upon receiving the summons, placed them in his briefcase, merely noting that they referred to the action, and “through inadvertence, did not call to counsel’s attention the papers he had received and was not at said aware of their nature.” (Id. at p. 682.) It was not until the defendant’s attorney had the matter called to his attention, checked his files and briefcase and found the documents. (Ibid.) The court found this constituted excusable neglect. (Id. at p. 686.)

Similarly, Defendant’s counsel was not notified by Defendant that substituted service had been completed on September 12, 2024, and only learned of the default after it had already been entered. Moreover, Defendant’s failure to communicate with its counsel was not due to mere forgetfulness, but inadvertence resulting from the departure of the prior handling attorney in August 2024. At that time, the prior attorney’s email and telephone number – the only means of contact Defendant had – becoming inactive. (Mijanovic Decl. ¶ 3.)

Accordingly, the Court finds that the unavailability of prior counsel due to her departure and the resulting loss of communication caused by deactivated contact information can supply legal grounds for the finding of excusable neglect under these circumstances.

Third, Defendant has satisfied the requirements by including a copy of proposed Answer. Said Answer denies the allegations and asserts affirmative defenses.

Finally, the Court notes that Plaintiff’s Opposition does not undermine its findings, as the Opposition fails to cite any controlling authority to provide sufficient legal analysis to support its contention. The Court finds the Opposition unpersuasive.

Based on the foregoing, the Court GRANTS the Motion.

CONCLUSION

Defendant AML Trucking Inc.’s Motion to Set Aside Default is GRANTED. The Court SETS ASIDE the default entered on November 7, 2024.

Defendant AML Trucking Inc. is ordered to file its Answer to the Complaint within 10 days.

Moving party is to give notice.