Judge: John J. Kralik, Case: 23BBCV00284, Date: 2024-08-23 Tentative Ruling

Case Number: 23BBCV00284    Hearing Date: August 23, 2024    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

BACKGROUND

A.    Allegations

Plaintiff Garry Tindell (in propria persona, “Plaintiff”) alleges that he expected a reasonable repair fee for his 1966 Mustang, which only had a few problems.  Plaintiff alleges that Defendant Jay Nieto, an individual dba Genesis 1 Auto Concepts (“Defendant”) presented him with a Work Order for $19,901.50 that allegedly reflected the repairs made to Plaintiff’s car.  Plaintiff alleges that Defendant guaranteed that Genesis had performed a full makeover of the vehicle, which included replacing the starter, the fuel pumps, the engine mount, the brakes, the master brake cylinder, a rebuilt carburetor, a fully rebuilt Ford 289 engine, a rebuilt Ford C4 transmission, and 36 additional parts.  Plaintiff alleges that Defendant warranted to Plaintiff that all of the replacement parts would be new, rebuilt, or reconditioned, but Defendant intentionally suppressed the fact that many of the parts Genesis used to repair the vehicle were old, defective, and unsafe. 

The complaint, filed February 3, 2023, alleges causes of action for: (1) fraud and deceit; (2) intentional misrepresentation; (3) violation of statute; (4) breach of oral contract and breach of implied covenant of good faith and fair dealing; (5) unjust enrichment; (6) unfair business practices; and (7) breach of implied warranty. 

On April 14, 2023, Plaintiff dismissed with prejudice DOE Defendants only.

B.     Relevant Background and Motion on Calendar

On April 14, 2023, the default of Defendant was entered.

On January 11, 2024, the default judgment of Defendant was entered. 

On July 9, 2024, Defendant filed a motion to set aside the default and default judgment.

On August 9, 2024, Plaintiff filed an opposition brief.

The Court notes that Defendant filed a second motion to set aside the default and default judgment on July 10, 2024.  The later-filed motion is set for hearing on September 13, 2024. 

DISCUSSION

            Defendant moves to set aside the default and default judgment pursuant to counsel’s mistake, surprise, or excusable neglect under CCP § 473(b). 

            As noted above, Defendant filed two motions to set aside the default.  The motion filed on July 9, 2024 (Reservation ID #038659920023) is 8 pages in length.  The motion filed on July 10, 2024 (Reservation ID #309016394085) is 16 pages in length and includes a copy of the proposed answer.  Otherwise, the motions appear to have identical memorandums of points and authorities and declarations in support of the motion. 

            The motion filed on July 9, 2024 that is set for hearing on August 23, 2024 shall be continued to September 13, 2024 so that the two motions to set aside may be heard and considered together. 

CONCLUSION AND ORDER

            Defendant Jay Nieto, an individual dba Genesis 1 Auto Concepts’ motion to vacate the default and default judgment is continued to September 13, 2024 at 8:30 a.m. so that it may be heard concurrently with the second motion to vacate the default and default judgment.  

            Defendant shall provide notice of this order.

DATED:  August 23, 2024                                         ___________________________

                                                                              John J. Kralik

                                                                              Judge of the Superior Court