Judge: Holly J. Fujie, Case: 22STCV16709, Date: 2022-11-21 Tentative Ruling

Case Number: 22STCV16709    Hearing Date: November 21, 2022    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

MOVING PARTY: Defendant Glaspro, Inc. (“Moving Defendant”)

            RESPONDING PARTY: Plaintiff

The Court has considered the moving, opposition and reply papers. 

BACKGROUND

On May 19, 2022, Plaintiff filed a complaint (the “Complaint”) alleging: (1) breach of written contract; (2) breach of written warranty; (3) breach of warranty of merchantability; (4) negligence; (5) negligent misrepresentation; (6) equitable indemnity; (7) contribution; and (8) strict products liability.

On July 26, 2022, default was entered against Moving Defendant.  On September 14, 2022, Moving Defendant filed a motion to vacate the default entered against it (the “Motion”) pursuant to California Code of Civil Procedure (“CCP”) section 473, subdivision (b).

DISCUSSION

The court is empowered to relieve a party or their legal representative from a judgment, dismissal, order, or other proceeding taken against them through their mistake, inadvertence, surprise or excusable neglect.  (CCP § 473, subd. (b).)  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.  (Id.)  The law favors a trial on the merits and courts therefore liberally construe section 473.  (Bonzer v. City of Huntington Park (1993) 20 Cal.App.4th 1474, 1477.)  Doubts in applying section 473 are resolved in favor of the party seeking relief from default.  (Id. at 1478.) 

Moving Defendant’s president, Joseph Green (“Green”) learned that Moving Defendant was a party to this lawsuit on May 23, 2022.  (Declaration of Joseph Green (“Green Decl.”) ¶ 2, Exhibit A.)  Within the hour, Green forwarded the summons and Complaint to Moving Defendant’s insurance carrier.  (Green Decl. ¶ 3.)  For reasons unknown to Green, there was a delay either on the part of Moving Defendant’s insurance broker or its insurance carrier in having the insurance carrier assign counsel.  (See Green Decl. ¶ 4.)

On July 27, 2022, Moving Defendant was assigned counsel by its insurance carrier.  (Declaration of Ian R. Feldman (“Feldman Decl.”) ¶ 4.) On July 28, 2022, Moving Defendant’s counsel contacted Plaintiff’s counsel and requested that Plaintiff stipulate to set aside the default.  (Feldman Decl. ¶ 5, Exhibit B.)  Through August 16, 2022, counsel for Moving Defendant and Plaintiff conferred about stipulating to set aside the default, but Plaintiff ultimately did not agree to the stipulation.  (Feldman Decl. ¶ 11.) 

Moving Defendant became represented shortly after its default was taken and immediately took steps to participate in this litigation.  The Court finds that Moving Defendant has sufficiently shown that its failure to timely respond to the Complaint by virtue of not checking in with its insurance broker/carrier was due to mistake, inadvertence or excusable neglect under Fasuyi v. Permatex, Inc. (2008) 167 Cal.App.4th 681.  (See Fasuyi v. Permatex, Inc. (2008) 167 Cal.App.4th 681, 694.) 

The Court therefore GRANTS the Motion and orders that the default entered against Moving Defendant be VACATED.  Moving Defendant is ordered to file its answer within five court days. 

Moving party is ordered to give notice.

            In consideration of the current COVID-19 pandemic situation, the Court¿strongly¿encourages that appearances on all proceedings, including this one, be made by LACourtConnect if the parties do not submit on the tentative.¿¿If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to¿SMC_DEPT56@lacourt.org¿stating your intention to appear in person.¿ The Court will then inform you by close of business that day of the time your hearing will be held. The time set for the hearing may be at any time during that scheduled hearing day, or it may be necessary to schedule the hearing for another date if the Court is unable to accommodate all personal appearances set on that date.¿ This rule is necessary to ensure that adequate precautions can be taken for proper social distancing.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

          Dated this 21st day of November 2022