Judge John J. Kralik, Case Number: 23BBCV00333, Date: 2023-12-22 Tentative Ruling

Plaintiff Maria Cecilia Orillo (“Plaintiff”) alleges that on February 16, 2021, she was involved in a motor vehicle accident with Defendant Khajak Kassardjian, who was driving a vehicle owned by Defendant Talar Narkazian. Plaintiff alleges that she was injured as a result of the incident.

The complaint, filed on February 9, 2023, alleges causes of action for: (1) motor vehicle; and (2) general negligence.

On November 13, 2023, Defendants filed a motion to set aside the entry of default.

Defendants move to set aside entry of default and default judgment pursuant to CCP § 473(b). Defendants argue that they were never properly served with the summons and complaint, Plaintiff’s counsel never informed defense counsel or their insurance adjuster of the notice of the request for entry of default, and Plaintiff never served Defendants with a statement of damages.

In support of the motion, Defendants provide the declaration of their counsel Mellania E. Safarian. Ms. Safarian states that on May 30, 2023, Plaintiff’s counsel filed proofs of service by substituted service showing that Defendants were served, but Defendants deny being served by personal or substituted service. (Safarian Decl., ¶4, Ex. C.) Counsel states that Plaintiff’s counsel never gave notice of her intent to file a request for entry of default despite Plaintiff’s counsel’s informal attempts to settle the matter with Defendants’ insurance adjuster. (Id., ¶5.) She states that Defendants first learned of the lawsuit when they were served with the initial request for entry of default. (Id.) Counsel states that had Plaintiff informed Defendant’s insurance adjuster that Defendants had been served with the case (prior to Defendants having been assigned counsel), defense counsel would have been assigned and an extension requested. (Id.) Default was entered on July 24, 2023. (Id., ¶6, Ex. E.) Ms. Safarian states that after receipt of the request for entry of default, the matter was given to her and she attempted to meet and confer with Plaintiff’s Counsel about the default, but Plaintiff’s counsel advised her that they would not stipulate to set aside the default. (Id., ¶¶7-8.)

With respect to the arguments that service was not proper, the Court lacks any information or evidence showing that Defendants were not properly served. The proofs of service state that Nazrkazian served by substituted service on May 16, 2023 at 12:17 p.m. at home (19219 Schoenborn Street, Northridge, CA 91324) by serving the documents on a John Doe; the documents were thereafter mailed on May 16, 2023. Service was effectuated by a registered California process server. (Mot., Ex. B.) Kassardjian was similarly served by substituted service at the same address on May 16, 2023 at 7:25 p.m. on John Doe and the documents were thereafter mailed. Although Ms. Safarian states that her clients were never served, Defendants have not filed this motion pursuant to CCP § 473.5 and they have not provided their declarations showing that service was improper. As such, this will not be a ground to grant the motion.[1]

Next, Defendants argue that they lacked notice of the action and the request for entry of default. They argue that Plaintiff’s counsel knew of Defendants’ insurance adjuster and thus had an obligation to provide notice. Defendants cite to Fasuyi v. Permatex, Inc. (2008) 167 Cal.App.4th 681, 701 (which refers to the Rutter Guide), which states in part: “If plaintiff's counsel knows the identity of the lawyer representing defendant, he or she owes an ethical obligation to warn before requesting entry of defendant's default. Failure to do so is a professional discourtesy to opposing counsel that will not be condoned by the courts: The quiet speed of plaintiffs' attorney in seeking a default judgment without the knowledge of defendants' counsel is not to be commended.” (Internal quotation marks omitted.) In opposition, Plaintiff argues that on July 21, 2023, Progressive Insurance (Defendants’ auto insurance company) representative Chelsea Herrington called Plaintiff’s counsel and left a voice message to discuss settlement and stated she believed Defendants had received some type of documents. Plaintiff states that it was after this message that she filed the requests for entry of default such that Defendants cannot honestly claim that they lacked notice of the complaint at the time default was taken.

Based on Ms. Safarian’s declaration, it appears that she was not retained until after the request for default had been entered. While Plaintiff’s counsel had been in communication with Defendants’ insurance adjusters in attempts to settle the case and it would have been reasonable to assume that an insurance company would retain counsel on behalf of its insured in the event of a lawsuit, Defendants did not retain counsel until after default had been entered. Although it would have been courteous for Plaintiff’s counsel to have informed Defendants’ insurance adjusters about the lawsuit and default, it was not a requirement under the law. (According to the request for entry of default form, only Defendants were served with the form.)

Lastly, Defendants argue that default was improper because Plaintiff had not served on them a Statement of Damages pursuant to CCP § 425.11. Section 425.11 states in relevant part:

(b) When a complaint is filed in an action to recover damages for personal injury or wrongful death, the defendant may at any time request a statement setting forth the nature and amount of damages being sought. The request shall be served upon the plaintiff, who shall serve a responsive statement as to the damages within 15 days. In the event that a response is not served, the defendant, on notice to the plaintiff, may petition the court in which the action is pending to order the plaintiff to serve a responsive statement.

(c) If no request is made for the statement referred to in subdivision (b), the plaintiff shall serve the statement on the defendant before a default may be taken.

(CCP § 425.11.) Defendants argue that they were never served with the Statement of Damages and that the Court’s file shows that no Statement of Damages (or notice of service of the document) was filed. They also point out that section 2 of the CIV-100 request for entry of default form (“Judgment to be entered”) was also blank so as not to provide them any notice of damages.

In opposition, Plaintiff states that she has attached a Statement of Damages to the opposition brief. (Opp. at Ex. 2.) The Statement of Damages is dated December 5, 2023. As stated in section 425.11(c), “the plaintiff shall serve the statement on the defendant before a default may be taken.” (Emphasis added.) Plaintiff’s belated attempt to include the Statement of Damages by way of the opposition brief after default has been taken is improper. This is a ground to grant the motion to set aside the default.

The Court will set aside the default. (CCP § 473(d).) A Statement of Damages was not properly filed at the time of the entry of default such that default just not have been entered in the first place. This amounts to a clerical error. Finally, the policy of the law strongly favors a hearing on the merits, which supports granting this motion. (Thompson v. Sutton (1942) 50 Cal.App.2d 272, 276.)

Defendants Khajak Kassardjian and Talar Narkazian’s motion to set aside the default is granted.

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[1] In opposition, Plaintiff argues that she properly served Defendants with the summons and complaint. As noted above, the motion on this basis is denied as Defendants have not made a proper showing under CCP § 473.5.

Superior Court of California

County of Los Angeles

Department B