Judge: Kevin C. Brazile, Case: 20STCV37014, Date: 2023-08-25 Tentative Ruling

Hearing Date: April 12, 2024

Case Name: Travelers Commercial Insurance Company, et al. v. Final Touch Collision 

Center, Inc., et al.

Case No.: 20STCV30935 

Matter: Motion to Set Aside Default Judgment

Moving Party: Defendant David Pastor

Responding Party: Unopposed

Notice: OK

Ruling: The Motion is granted.

Moving party to give notice.

If counsel do not submit on the tentative, they are strongly 

encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic. 

This is an action in which Plaintiffs Travelers Commercial Insurance Company and Consumers County Mutual Insurance Company allege that “Defendant West Hollywood Collision Center (“WHCC”) (and, by extension, the other defendants, who Travelers alleges are alter egos and successor corporations of one another) had engaged in improper conduct with one of Travelers’ insured’s (Kirill Zagalsky) vehicles, by charging excessive and fraudulent fees, and then holding the vehicle hostage until it received a lump-sum cash payment.” 

On February 23, 2024, the Court entered a default judgment against Defendant David Pastor.

Defendant David Pastor now seeks to set aside his default and default judgment on the ground of attorney negligence, mistake, or inadvertence.  (Code Civ. Proc. § 473(b).)

The mandatory provision of Code Civ. Proc. § 473(b) states, “Notwithstanding any other requirements of this section, 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. The court shall, whenever relief is granted based on an attorney's affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties.”

“[A]n attorney affidavit of fault under the mandatory relief provisions of section 473, subdivision (b) need not include an explanation of the reasons for the attorney's mistake, inadvertence, surprise, or neglect.”  (Martin Potts & Assocs., Inc. v. Corsair, LLC (2016) 244 Cal. App. 4th 432, 443.)  Moreover, under this mandatory provision “it does not matter whether [counsel’s] neglect was excusable or inexcusable.”  (Ibid.) 

Here, Pastor’s counsel adequately submits a declaration that provides: “When I received the Complaint, I mistakenly, inadvertently and/or negligently did not calendar the date that [Pastor’s] response to the Complaint was due, did not instruct anyone from my office to calendar the due date, and did not timely file a response to the Complaint.”  This is sufficient to meet the requirements of Code Civ. Proc. § 473(b) such that Pastor’s default and default judgment will be set aside.

The Motion is granted.

Moving party to give notice.

If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.