Judge: Kerry Bensinger, Case: 22STCV37504, Date: 2023-10-09 Tentative Ruling

Case Number: 22STCV37504    Hearing Date: October 9, 2023    Dept: 27

Tentative Ruling

Judge Kerry Bensinger, Department 27

HEARING DATE:     October 9, 2023                                 TRIAL DATE:  May 29, 2024

CASE:                                Kaitlyn Ali v. Kaylen Ward

CASE NO.:                 22STCV37504

MOTION TO SET ASIDE DEFAULT

MOVING PARTY:               Defendant Kaylen Ward

RESPONDING PARTY:     Plaintiff Kaitlyn Ali

I.          BACKGROUND

            On November 30, 2022, Plaintiff, Kaitlyn Ali, filed a form complaint against Defendant, Kaylen Ward, for injuries arising from a two-vehicle motor vehicle accident.  Defendant was served with the summons and complaint on March 5, 2023. 

            At Plaintiff’s request, default was entered against Defendant on April 12, 2023. 

            Defendant filed an Answer to the complaint on April 14, 2023.[1] 

            On August 3, 2023, Defendant filed this motion to set aside the default under Code of Civil Procedure section 473, subdivision (b). 

Plaintiff filed an opposition and supplemental brief regarding penalties under Code of Civil Procedure section 473, subdivision (b).  Plaintiff requests penalties against Defendant if the motion is granted.  Defendant filed a reply.

II.        LEGAL STANDARD

Code of Civil Procedure section 473, subdivision (b) provides that a court may “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.”  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.”  (Code Civ. Proc., § 473, subd. (b).)   

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”].)   

III.      EVIDENTIARY OBJECTIONS

            a.  Plaintiff’s Objections

            Plaintiff submits twenty-five (25) objections to portions of the Declarations of Kaylen Ward, Alannah Lieberman, and Mindi Grant. 

Objections to Declaration of Kaylen Ward

Objection No. 1: The objections are non-specific.  Parts of the quoted paragraph are hearsay; parts are not offered for the truth of the matter asserted parts are not hearsay.  Given the lack of clarity, the objection is overruled.

Objection No. 2: Overruled

Objection No. 3: part of the sentence is conclusory, and part is admissible.  Given the lack of clarity of the objection, the objection is overruled.

Objection No. 4: The Court need not rule on this objection as it is not material to the disposition of the matter.

Objections to the Declaration of Alannah Lieberman

Objection No. 5: Overruled

Objection No. 6:  Overruled on the grounds stated.

Objection No. 7: The objections are non-specific.  Parts of the quoted paragraph are hearsay; parts are not offered for the truth of the matter asserted; parts are not hearsay.  Given the lack of clarity, the objection is overruled.

Objection No. 8: Overruled

Objection No. 9: Overruled

Objection No. 10: part of the paragraph is conclusory; part is not.  Given the lack of clarity, the objection is overruled.

Objection Nos. 11-13: The Court need not rule on this objection as it is not material to the disposition of the matter.

Objections to the Declaration of Mindi Grant

Objection No. 14: Overruled

Objection Nos.15-23: Overruled on the grounds stated.

Objection No. 24: Sustained in part as to the legal conclusion.

Objection No. 25: The Court need not rule on this objection as it is not material to the disposition of the matter.

b.  Defendant’s Objections

Defendant submits 16 objections to the Declaration of Neil Steiner.

Objection No. 1-3:  The Court need not rule on this objection because it is not material to the disposition of the matter.

Objection No. 4: Overruled on the grounds stated

Objection No. 5 -6: Sustained – lack of foundation and speculation

Objection No. 7: Overruled

Objection No. 8: Sustained – lack of foundation and speculation

Objection No. 9: Overruled on the grounds stated

Objection No.10-16: The Court need not rule on these objections because they are not material to the disposition of the matter.

IV.       DISCUSSION

“The policy of the law is to have every litigated case tried upon its merits, and it looks with disfavor upon a party who, regardless of the merits of his case, attempts to take advantage of the mistake, surprise, inadvertence or neglect of his adversary.”  (Palmer v. Moore (1968) 266 Cal.App.2d 134, 142.)

Defendant seeks relief because of her mistake, inadvertence, surprise, or excusable neglect.  In support, Defendant offers her declaration, wherein Defendant states having informed her automobile insurance company, State Farm, that she had been served with Defendant’s complaint.  Based on Plaintiff’s conversation with the State Farm team member, Defendant believed—mistakenly—that she did not need to take any other action to protect her rights and interests with respect to this lawsuit and understood that counsel would be assigned to handle the litigation.  Defendant did not tell the State Farm team member when she was served with the complaint.  Defendant further states that at the time she was served with the complaint, she was in the midst of moving to a new residence.  Because she moved, Plaintiff did not receive correspondence from Plaintiff’s counsel dated April 6, 2023 until April 27, 2023.  The correspondence warned Defendant a default would be taken if she did not file a response to the complaint by April 10, 2023.  Defendant states that had she in fact seen the letter from Plaintiff’s counsel prior to the default being entered, she would have contacted the State Farm claims team to inform them that a responsive pleading needed to be filed to avoid entry of default.  (Declaration of Kaylen Ward, ¶¶ 5-7.) 

Defendant also offers the declaration of her counsel, Mindi Grant.  In her declaration, Ms. Grant states that she received the assignment to represent Defendant in this matter on April 13, 2023; Ms. Grant was initially unaware of the entry of default.  Upon learning a request for entry of default had been filed with the Court, Ms. Grant filed an Answer on April 14, 2023, and later attempted to contact Plaintiff’s counsel regarding a possible stipulation to set aside the default and to discuss resolution of this case.  Having not received a response, Ms. Grant proceeded to file this motion less than four months after the entry of default.  (Declaration of Mindi Grant, ¶¶  2-12.) 

Based on the foregoing, Defendant merits discretionary relief under 473.  Defendant establishes the default was taken due to her inadvertence, mistake, or excusable neglect.  And, Defendant’s counsel timely filed a motion to set aside the default.  Given the policy favoring disposition of cases upon their merits and Defendant’s averments of mistake or neglect in support of a timely motion for relief, Defendant is entitled to relief.  Plaintiff’s arguments to the contrary are not persuasive.

IV.       CONCLUSION 

The motion to set aside default is GRANTED.  The default entered against Defendant Kaylen Ward on April 12, 2023 is VACATED.  Defendant’s Answer is deemed filed as of April 14, 2023.

            Plaintiff’s request for penalties under Code of Civil Procedure section 473, subdivision (c) is DENIED.[2]

Dated:   October 9, 2023                                           ___________________________________

                                                                                    Kerry Bensinger

                                                                                    Judge of the Superior Court

            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.