Judge Kerry Bensinger, Case Number: 20STCV12315, Date: 2023-09-20 Tentative Ruling

CASE: Sedgwick Claims Management Services, Inc. v. Indigo Construction Corp., et al.

This is a consolidated action arising from injuries suffered by Plaintiffs, Gaudencio Romero and Alberto Mena, while working on a construction jobsite. On April 1, 2021, Plaintiffs initiated this related case (Case No. 21 STCV12448) against Defendants, Indigo Construction Corp., Aragon Glendale Properties Corporation, Calico Construction, Inc., and Does 1 to 60, for negligence and premises liability. On August 5, 2022, Plaintiffs amended the Complaint to name Cal-Coast Construction Specialties, Inc. (“Cal-Coast”) as Doe 3. Default was entered against Cal-Coast on January 18, 2023.

On July 13, 2023, Cal-Coast filed this motion to quash service of the summons and complaint and to set aside the default. Plaintiffs have filed an Opposition. Cal-Coast has not filed a Reply.

As a threshold issue, Cal-Coast’s motion to quash is untimely. Pursuant to Code of Civil Procedure section 418.10, subd. (a)(1), a defendant, on or before the last day of his or her time to plead or within any further time that the court may for good cause allow, may serve and file a notice of motion to quash service of summons on the ground of lack of jurisdiction of the court over him or her.

Here, Plaintiffs effected service of the summons and complaint by substituted service on October 13, 2022. Cal-Coast filed this motion to quash ten months later, which is well past the time for Cal-Coast to file a responsive pleading. Further, the Court does not find good cause to allow Cal-Coast to seek an order quashing service of summons past the time in which to plead. Accordingly, the Court considers only Cal-Coast’s motion to set aside the default.

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. (Code Civ. Proc., § 473, subd. (b).) In addition, a court must vacate a default or dismissal when a motion for relief under Section 473, subdivision (b) is filed timely and accompanied by an attorney’s sworn affidavit attesting to the attorney’s mistake, inadvertence, surprise or neglect “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 party or the legal representative must seek such relief “within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (Code Civ. Proc., § 473, subd. (b); see Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980 [“because more than six months had elapsed from the entry of default, and hence relief under section 473 was unavailable”]; People v. The North River Ins. Co. (2011) 200 Cal.App.4th 712, 721 [motion for relief under section 473 must be brought “within a reasonable time, in no case exceeding six months”].)

Cal-Coast requests judicial notice of a screenshot of the California Secretary of State website reflecting that the address registered with the California Secretary of State for service on Cal-Coast’s agent for service of process is 568 Constitution Ave., St. B, Camarillo, CA 93012. The unopposed request is GRANTED. (Evid. Code., § 452, subd. (h).)

Cal-Coast seeks to set aside the default based on mistake. In support, Cal-Coast offers the declaration of Cal-Coast’s Assistant Controller, Matthew Kessel, who states that it was his understanding “that the law firm Sellar, Hazard & Lucia had been appointed to represent Cal-Coast interests in the litigation by the insurance carrier for the construction project which [is] subject of plaintiffs’ Complaint.” (Kessel Decl., ¶ 4.) Later, the Sellar Firm informed the declarant that “Cal-Coast had been dismissed from this case when, in fact, Cal-Coast’s default had already been taken.” (Kessel Decl., ¶ 6.) Moreover, in late June 2023, declarant “learned for the first time that the Sellar Firm had not appeared on Cal-Coast’s behalf because the insurer for the construction project had not yet authorized the firm to do so.” (Kessel Decl., ¶ 9.) Based on their mistaken belief that Cal-Coast had representation in this matter, and more, that they had been dismissed from this action, Cal-Coast seeks an order setting aside the default.[1]

Plaintiffs argue Kessel’s declaration does not set forth specific facts demonstrating a reasonable basis to believe the Sellar Firm was acting to protect Cal-Coast’s interests. “Where a default is entered because defendant has relied upon a codefendant or other interested party to defend, the question is whether the defendant was reasonably justified under the circumstances in his reliance or whether his neglect to attend to the matter was inexcusable.” (Weitz v. Yankosky (1966) 63 Cal.2d 849, 856.)

Here, Kessel also states that when he learned Cal-Coast’s default had been taken, Kessel “immediately asked the Sellar Firm to take appropriate action in response to the default and the Sellar Firm confirmed they would do so.” (Kessel Decl., ¶ 7.) Further, Kessel “repeatedly asked the Sellar Firm to provide status updates as to Cal-Coast’s appearance in this case. Lawyers with the Sellar Firm repeatedly advised me that they were working on Cal-Coast’s status in this litigation and they were in ongoing communications with the insurance carrier for the construction project as to Cal-Coast’s defense.” (Kessel Decl., ¶ 8.) These statements, and those quoted above, make sufficiently clear that Cal-Coast believed they were represented by the Sellar Firm before and after default was entered against Cal-Coast. These statements are specific enough to show Cal-Coast was reasonably justified in believing the Sellar Firm were defending Cal-Coast’s interest.

Further, given that Cal-Coast timely sought to set aside the default and Plaintiffs fail to demonstrate any prejudice other than having to prosecute this action, the Court finds Cal-Coast is entitled to an order setting aside the default.

Accordingly, the motion to set aside the January 18, 2023 default against Defendant Cal-Coast Construction Specialties, Inc. is GRANTED.

Cal-Coast is directed to file its Answer, attached as Exhibit E to the motion, within 10 days of this order.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

[1] Cal-Coast also seeks to set aside default based on the mistaken belief that the default was void due to lack of proper service of the summons and complaint. The Court does not address this separate ground to set aside the default.