Judge: Frank M. Tavelman, Case: 22BBCV01199, Date: 2023-11-03 Tentative Ruling

Case Number: 22BBCV01199    Hearing Date: November 3, 2023    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

MOTION TO SET ASIDE DEFAULT/VACATE DEFAULT JUDGMENT

ALLEGATIONS: 

State Farm Mutual Automobile Insurance Company (“Plaintiff”) brings this action against Francisca Ruiz (“Defendant”) for subrogation in connection with a motor vehicle accident. On March 3, 2023, the Court entered default against Defendant for failure to file a responsive pleading. On May 7, 2023, the Court entered default judgment against Defendant.

Defendant now moves to vacate the default judgment and set aside the default pursuant to Code of Civil Procedure (“C.C.P.”) § 473. Defendant states the default and default judgment were entered as a result of the neglect of her counsel. Plaintiff submits no opposition.

ANALYSIS: 

I.                    LEGAL STANDARD 

Plaintiff seeks relief pursuant to Code of Civil Procedure § 473(b). Code of Civil Procedure § 473(b) has both a discretionary relief provision and a mandatory relief provision. (Jackson supra, 32 Cal. App. 5th 166, at 173.)  The discretionary provision of Code of Civil Procedure § 473(b), in pertinent part, reads as follows:

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…

The mandatory provision of Code of Civil Procedure § 473(b) reads, in pertinent part, as follows:

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, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect. 

The general underlying purpose of Code of Civil Procedure § 473(b) is to promote the determination of actions on their merits. (Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830.) Under this statute, an application for relief must be made no more than six months after entry of the judgment, dismissal, order, or other proceeding from which relief is sought and must be accompanied by an affidavit of fault attesting to the mistake, inadvertence, surprise or neglect of the moving party or its attorney. (C.C.P., § 473(b); English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 143.)

II.                 MERITS

Defendant now asks that the Court enter an order setting aside the default and default

Defendant submits the declaration of her counsel, Alexandra Barreno. Barreno states that she neglected to file a responsive pleading in this matter in a timely fashion. (Barron Decl. ¶ 3.) Barrone also states she failed to reach out to Plaintiff’s counsel with respect to requesting an extension on time to answer. (Id.) Barrone reached out to Plaintiff’s counsel on July 14, 2023 to explain the inadvertent failure to respond and Plaintiff’s counsel agreed to a stipulation setting aside the default/judgment. (Barrone Decl. ¶ 4, Exh. A.) According to Barrone, changes at Plaintiff’s counsel caused the file to change hands. (Barrone Decl. ¶ 5, Exh. B.) Barrone was in contact with the new managing attorney who originally agreed to keep the stipulation, but then later informed he would be unable to. (Id.)

In addition to the affidavit of attorney mistake, Defendant also submits a proposed answer in accordance with C.C.P. § 473(b).

Given the above, the Court finds Defendant has made the sufficient showings under statute to support the default judgment be vacated and the default set aside. Accordingly, Defendant’s unopposed motion to set aside default/vacate default judgment is GRANTED.

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records. 

ORDER 

Francisca Ruiz’s Motion to Set Aside Default and Vacate Default Judgment came on regularly for hearing on May 18, 2023, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows: 

THE MOTION TO SET ASIDE THE DEFAULT AND VACATE DEFAULT JUDGMENT IS GRANTED. 

DEFENDANT TO FILE THEIR ANSWER WITHIN 10 COURT DAYS.

COURT SETS A CASE MANAGEMENT CONFERENCE FOR FEBRUARY 29, 2024 AT 9:00 A.M.

UNLESS ALL PARTIES WAIVE NOTICE, DEFENDANT TO GIVE NOTICE.

IT IS SO ORDERED. 

DATE: November 3, 2023                            _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles