Judge: Elaine W. Mandel, Case: 23SMCV05149, Date: 2024-10-01 Tentative Ruling

Case Number: 23SMCV05149    Hearing Date: October 1, 2024    Dept: P

Tentative Ruling

Farmers Insurance v. McCarthy, Case No. 23SMCV05149

Hearing date October 1, 2024

Defendant Farmers’ Motion to Set Aside Default

Plaintiff Farmers Insurance sued to recover damages resulting from a motor vehicle between one of its insureds and defendant McCarthy. Defendant was served 11/10/2024. As no answer was filed, default was granted on 2/28/2024, and notice of default was served 3/1/2024. Defendant moves to set aside the default on 8/27/2024, including a proposed answer. Plaintiff opposes.

Under Cal. Code of Civ. Proc. §473(b), the court may set aside a dismissal taken against a party through “mistake, inadvertence, surprise, or excusable neglect.” Relief under §473 should be liberally granted because public policy favors resolution of disputes on the merits, rather than through technical default. E.g., Fasuvi v. Permatex, Inc. (2008) 167 Cal.App.4th 681, 685.

Defendant acknowledges he was personally served on 11/10/2023. Despite this, defendant argues he “did not receive actual notice as he was unable to understand the nature of the documents in time to defend the action.” Mtn. to Set Aside at 3:19-20. Defendant’s counsel states defendant did not understand his obligation to file a responsive pleading within 30 days. Decl. Castro para. 2. It is on this basis that defendant seeks to set aside.

Plaintiff provides the declaration of Megan Sarrail, which states plaintiff previously retained Erika Prager as counsel on 2/20/2024, and Prager reached out to plaintiff, stating defendant had not been served. Decl. Sarrail para. 7. Plaintiff provided Prager with a photo of defendant being served on 11/10/2024. Id. Plaintiff received no further communications from Prager. Id.

Ignorance of the law is not in of itself a defense, and simply because defendant allegedly did not understand his obligations at the time of service does not change that he was properly served and a default properly entered.

However, California maintains a strong preference to settle disputes via litigation and trial, and defendant has demonstrated his willingness to move forward with the litigation process by retaining new counsel and providing a proposed answer to the complaint. The motion is GRANTED.

The court will also exercise its discretion under Cal. Civ. Proc. §473(c)(1)(A) to impose a penalty of $800 on defendant as requested by plaintiff. Defendant was given ample time to avoid the initial default, and plaintiff provides evidence that defendant was under sufficient notice to retain counsel prior to the default being entered. The request for a penalty of $800 is reasonable.

GRANTED with a penalty of $800 against defendant. Payable within 30 days.