Judge: Latrice A. G. Byrdsong, Case: 21STLC07288, Date: 2023-10-04 Tentative Ruling
Case Number: 21STLC07288 Hearing Date: October 4, 2023 Dept: 25
Anne Lee v. Alfonso Jauregui
Defendant Alonso Jauregui’s Motion to Vacate Entry of Default Judgment is GRANTED.
BACKGROUND
On October 6, 2021, Plaintiff Anne Lee (“Plaintiff”) brought an action against Defendant Alonso Jauregui (“Defendant”) arising out of an alleged motor vehicle accident that took place on December 11, 2019.
On February 3, 2022, pursuant to Plaintiff’s request, default was entered against Defendant. (2-3- 22 Request for Entry of Default.) On May 18, 2023, default judgment was entered for Plaintiff and against Defendant in the amount of $15,824.22. (5-18-23 Default Judgment.)
On June 6, 2023, Defendant filed a Motion to Vacate Entry of Default Judgment Against Defendant. Defendant withdrew the Motion on June 14, 2023.
On June 20, 2023, Defendant filed a Motion to Vacate Entry of Default Judgment Against Defendant. Plaintiff filed an Opposition on July 19, 2023. On August 1, 2023, the Court noted that Defendant had filed a defective Notice of Motion, listing the Stanley Mosk Courthouse address, instead of the Spring Street Courthouse address, where the hearing on the Motion was to take place. (8-1-23 Minute Order.) The Court also noted that Defendant had not filed proof that the moving papers had been served on Plaintiff. (Ibid.) For these reasons, the Court continued the hearing on the Motion and ordered Defendant to correct these deficiencies. (Ibid.) On August 29, 2023, the Court, on its own motion, continued the hearing on the Motion to September 12, 2023. (8-29-23 Minute Order.)
On September 5, 2023, Defendant filed the instant Motion to Vacate Entry of Default Judgment Against Defendant (“Motion”) with a reservation date for October 4, 2023. Plaintiff filed an Opposition on September 18, 2023. Defendant filed a reply on September 20, 2023.
Given that the Defendant did not file a corrected Notice of Motion and Proof of Service in response to the Court’s August 1, 2023 Order and filed the instant Motion with a reservation date of October 4, 2023 instead, on September 12, 2023, the Court placed Defendant’s August 1, 2023 Motion off calendar. (9-12-23 Minute Order.)
MOVING PARTY POSITION
Defendant’s moving papers are supported by the declaration of his attorney, Gary C. Harvey (“Harvey”), who is practicing at Martinez, Dieterich & Zarcone Legal Group (“MDZ”). Mr. Harvey states that MDZ is in-house counsel for Defendant’s insurance carrier, Loya Casualty Insurance Company (“Loya”). (Mot., Harvey Decl., ¶ 4.) Mr. Harvey attests that once a Complaint is filed against Loya in California, MDZ represents the respective defendant and is responsible for monitoring the Court docket to determine whether and when Defendant was properly served. (Mot., Harvey Decl., ¶ 4.) Further, Mr. Harvey states that between February 2022 and March 2023, almost half of the attorneys and staff left MDZ, including the attorney handling this case. (Mot., Harvey Decl., ¶ 4.) The loss of attorneys and staff created confusion as to who was responsible for which files which lead to mistakes noted herein. (Mot., Harvey Decl., ¶ 5.) Mr. Harvey states that he, his predecessor, and MDZ staff neglected to contact Defendant from the time the Complaint was filed until the default was taken to determine if Defendant had been properly served with the Complaint. (Mot., Harvey Decl., ¶ 11.) Further, Mr. Harvey states he and his predecessor neglected to ensure MDZ staff were sufficiently monitoring the County of Los Angeles Superior Court docket to determine if a Complaint was served on Defendant. (Mot., Harvey Decl., ¶ 12.) As a result of Mr. Harvey’s mistake, default was entered against Defendant. (Mot., Harvey Decl., ¶ 13.) Once Mr. Harvey became aware of the default, he instructed his staff to contact Defendant. (Mot., Harvey Decl., ¶ 13.) Mr. Harvey states Defendant is available and cooperating in defense of this case. (Mot., Harvey Decl., ¶ 14.)
OPPOSITION
In opposition, Plaintiff argues Defendant’s own failure to act was the actual cause of a default judgment being entered against him. (Plaintiff’s Mot., Pg. 3.) Plaintiff argues Defendant failed to notify the relevant parties he had been served with the Summons. (Plaintiff’s Mot., Pg. 3.) Additionally, Plaintiff argues Defendant did not provide a declaration as to why he did not respond to the Summons or efforts he made to communicate with his insurance company after being served with the Summons and Complaint. (Plaintiff’s Mot., Pg. 3.) Further, Plaintiff contends that to relieve Defendant from his own inexcusable failure to act, MDZ is taking full responsibility for Defendant’s own failure. (Plaintiff’s Mot., Pg. 3.) Plaintiff argues it should be Defendant’s own responsibility to act on the Summons and notify his insurance company. (Plaintiff’s Mot., Pg. 3.) Plaintiff also argues that MDZ was not counsel for Defendant between the time Defendant was served with the Summons to the time Default was entered. (Plaintiff’s Mot., Pg. 4.) Plaintiff argues Defendant was represented by attorneys from the Chavez Legal Group. (Plaintiff’s Mot., Pg. 4.) On July 27, 2022, attorney Lili Mostofi (“Mostofi”) from Chavez Legal Group informed Plaintiff’s counsel that she represented Defendant and asked that the default be set aside.
REPLY
On Reply, Mr. Harvey argues the Chavez Legal Group changed its name to MDZ in March 2023 because several attorneys left the firm. (Defendant’s Reply, Pg. 1.) Thus, MDZ is the same law firm that has represented Defendant since the case started, as noted in comparison to the firm’s address. (Defendant’s Reply, Pg. 1.) Ms. Mostofi, the attorney who informed Plaintiff she represented Defendant, was one of the attorneys who left MDZ. (Defendant’s Reply, Pg. 1.) Mr. Harvey further argues that Plaintiff served Defendant by substitute service on February 2, 2022, but filed a proof of service by publication on May 18, 2023, which is why Defendant did not respond. (Defendant’s Reply, Pg. 2.) Mr. Harvey argues that due to the confusion of assigned files when attorneys left MDZ, neither he nor MDZ followed up with Defendant to confirm service of this suit. Finally, Defendant’s counsel argues that this is the proper motion to file and since it was filed within 6 months of entry of judgment, this Court should grant the instant motion.
ANALYSIS
I. Motion to Set Aside Default Judgment
A. Legal Standard
“Section 473(b) provides for both discretionary and mandatory relief. [Citation.]” (Pagnini v. Union Bank, N.A. (2018) 28 Cal.App.5th 298, 302.) An application for relief under this section must be made no more than six months after entry of the judgment, dismissal, order, or other proceeding from which relief is sought and must be accompanied by an affidavit of fault attesting to the mistake, inadvertence, surprise or neglect of the moving party or its attorney. (Code Civ. Proc., § 473, subd. (b); English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 143.) In addition, an application for relief under this section “shall be accompanied by a copy of the answer or other pleading proposed to be filed herein, otherwise the application shall not be granted.” (Code Civ. Proc., § 473, subd. (b).) Relief under this section is mandatory when based on an attorney affidavit of fault; otherwise, it is discretionary. (Id.) When relief from default and default judgment is the attorney’s fault, the six-month period starts to run from the date of the entry of the default judgment. (Code Civ. Proc., § 473, sub. (b); Sugasawara v. Newland (1994) 27 Cal.App.4th 294, 295.)
B. Discussion
Here, Mr. Harvey’s office represented Defendant since the beginning of the lawsuit. Ms. Mostofi informed Plaintiff that she represented Defendant on July 27, 2022. Mr. Harvey stated that nearly half of MDZ attorneys and staff left the office between February 2022 and March 2023, including Ms. Mostofi. Due to the large departure of staff and lawyers, Mr. Harvey attests that confusion arose about what cases were assigned to what lawyer. As a result of Mr. Harvey and MDZ’s mistake and neglect, an answer was not timely filed. Additionally, due to their neglect, neither Mr. Harvey nor MDZ ever followed up with Defendant to ask if he had been served. Therefore, default judgment was entered against Defendant due to Mr. Harvey and MDZ’s mistake and neglect.
III. Conclusion
For the foregoing reasons, Defendant’s Motion to Set Aside Default Judgment is GRANTED.
Defendant's answer to be separately filed within 10-days.
Trial in this action is reset for June 4, 2024 at 8:30 a.m. in Department 25 of the Spring Street Courthouse.
Discovery and all other trial related deadlines to comport with the new trial date.
Parties must comply with the trial requirements as set forth in the court's Third Amended Standing Order for Limited Civil Cases (effective February 24, 2020).
All trial documents are to be electronically filed at least ten (10) days prior to the trial date.
Parties should be prepared to submit a JOINT Trial Readiness Binder and Exhibit Binder on the date of trial, and to personally appear.
Moving parties are ordered to give notice.