Judge: Latrice A. G. Byrdsong, Case: 21STLC07663, Date: 2024-01-04 Tentative Ruling

*** Please Note that the Judicial Officer Presiding in Department 25 is Commissioner Latrice A. G. Byrdsong ***
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Case Number: 21STLC07663    Hearing Date: January 4, 2024    Dept: 25

Hearing Date:                         Thursday, January 04, 2024

Case Name:                             INTERINSURANCE EXCHANGE OF THE AUTOMOBILE CLUB, an interinsurance exchange v. ERIC HEREDIA, an individual; JOSE LUIS MOLINA, an individual; DOES 1 through 10 inclusive

Case No.:                                21STLC07663

Motion:                                   Motion to Set Aside/ Vacate Default Judgment

Moving Party:                         Defendant Eric Heredia 

Responding Party:                   None

Notice:                                    OK

Tentative Ruling:                    Defendant Eric Heredia’s Motion to Set Aside/Vacate Default /Default Judgment is GRANTED. 

DEFENDANT ERIC HEREDIA IS ORDERED TO FILE HIS ANSWER TO THE COMPLAINT WITHIN TEN (10) DAYS OF NOTICE OF THIS COURT’S RULING.

TRIAL IN THIS ACTION IS RESET FOR SEPTEMBER 6, 2024 AT 8:30 A.M. IN DEPARTMENT 25 OF THE SPRING STREET COURTHOUSE.

MOTION AND DISCOVERY CUT-OFF DATES ARE TO FOLLOW THE NEW TRIAL DATE.

Moving party is ordered to give notice.

SERVICE: 

[X] Proof of Service Timely Filed (CRC, rule 3.1300)                      OK

[X] Correct Address (CCP §§ 1013, 1013a)                                      OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b))                       OK 

OPPOSITION:          None filed as of December 20, 2023              [   ] Late          [X] None 

REPLY:                     None filed as of December 27, 2023              [   ] Late          [X] None 

BACKGROUND

On October 25, 2021, Plaintiff Interinsurance Exchange of the Automobile Club (“Plaintiff”) filed an Automobile Subrogation claim against Defendants Eric Heredia (“Defendant” “Heredia”), and Jose Luis Molina (“Molina”) seeking damages in the sum of $15,000.00.

On February 25, 2022, the Clerk entered default against Defendant.

On February 01, 2023, Plaintiff requested dismissal Defendant Molina from the action without prejudice.

On February 28, 2023, the Court entered default judgment in favor of Plaintiff and against Defendant in the amount of $15,729.52.

On October 26, 2023, Defendant filed the instant Motion to Set Aside/ Vacate Default Judgment. No opposition was filed.

MOVING PARTY POSITION

Defendant prays for the Court to set aside the default and default judgment entered against Defendant. Defendant argues that he should be entitled to relief under 473(b) due to his own mistake, inadvertence surprise or excusable neglect due to him not being aware of the action against him. In the alternative, Defendant requests relief on the equitable ground of extrinsic mistake or fraud.

OPPOSITION

            No opposition has been filed. 

REPLY

            No reply has been filed.

ANALYSIS

I.          Legal Standard

Under Code of Civil Procedure, section 473, subdivision (b), “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.” (Code Civ. Proc., §473(b)). Relief under this section is mandatory when based on an attorney affidavit of fault; otherwise, it is discretionary. (Id.) An application for relief must be made no more than six months after entry of the order from which relief is sought and must be accompanied by an affidavit of fault attesting to the moving party’s mistake, inadvertence, surprise, or neglect. (Code Civ. Proc., § 473, subd. (b); English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 143.) When relief from default and a default judgment is based on an attorney affidavit of 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.)

“‘[W]hen relief under section 473¿is¿available, there is a strong¿public¿policy¿in¿favor¿of granting relief and allowing the requesting party his or her day in court…[Citation.]” (Rappleyea v. Campbell¿(1994) 8 Cal. 4th 975, 981-82.) 

II.        Discussion

Defendant moves to set aside default and default judgment under Section 473(b) or in the alternative under equitable grounds of either extrinsic fraud or mistake.

A. Motion to Set Aside under CCP § 473(b)

As a general matter, the Court notes that the motion is not timely as it pertains to setting aside the default and default judgment under CCP § 473(b). First, more than six months have lapsed since both default and default judgment was entered against Defendant. Second, Courts have continually held that setting aside default judgment without setting aside the default would be an “idle act” and thus not permitted even though technically timely. (Pulte Homes Corp. v. Williams Mechanical, Inc. (2016) 2 CA5th 267, 273.) Here since both default and default judgment has been entered, setting aside default judgment in this case would still not allow Defendant to file an answer without first setting aside the default. Thus, for Defendant to be able to properly file his answer, Defendant must seek to set aside the default.

Here, default was entered against Defendant on February 25, 2022. (02/25/22 Request for Entry of Default.) Default Judgment was entered on February 28, 2023. (02/28/23 Default Judgment.) Defendant filed his motion to set aside default judgment on October 26, 2023, well over the six-month deadline prescribed under CCP § 473(b) to seek relief from both the default and default judgment. Thus, Defendant would be time barred from setting aside both the default and default judgment because the motion was filed more than six months after the issuance of default and default judgment.

 Here, Defendant is additionally not entitled to mandatory relief as he does not provide an attorney affidavit of fault.

Therefore, the Court cannot grant statutory relief under 473(b).

B. Equitable Grounds

  Defendant alternatively argues that he is entitled to equitable relief based on either extrinsic fraud or mistake.

Equitable relief from judgments or dismissals is available only upon a showing of extrinsic factors like extrinsic fraud or mistake. (Advanced Bldg. Maint. v. State Comp. Ins. Fund (1996) 49 Cal. App. 4th 1388, 1395.)

i. Extrinsic Fraud

“Extrinsic fraud occurs when a party is deprived of the opportunity to present his claim or defense to the court; where he was kept ignorant or, other than from his own negligence, fraudulently prevented from fully participating in the proceeding. [Citation.] Examples of extrinsic fraud are: ... failure to give notice of the action to the other party, and convincing the other party not to obtain counsel because the matter will not proceed (and then it does proceed). [Citation.] The essence of extrinsic fraud is one party's preventing the other from having his day in court.” (Sporn v. Home Depot USA, Inc. (2005) 126 Cal.App.4th 1294, 1300.) To warrant relief from a judgment based upon fraud, "the fraud must have brought about the entry of the judgment, e.g., by lulling the movant into sacrificing his opportunity to present a defense." (Hopkins & Carley v. Gens (2011) 200 Cal.App.4th 1401, 1416.)

Here, Defendant fails to establish grounds for equitable relief based on extrinsic fraud. Nothing in Defendant’s moving papers supports the contention that he was kept ignorant or fraudulently prevented from fully participating in the proceeding. Defendant argues that extrinsic fraud or mistake exists because he was not actually served with process of the complaint and was only made aware of the default/default judgment entered against him once his license was suspended via the Court’s Order of Suspension. (Motion p. 2:22-28, 3:1-3.) However, this is not sufficient to show extrinsic fraud because Defendant has not shown that it was Plaintiff’s actions that led to Defendant being deprived of the opportunity to present his claim or defense in court. Thus, because Defendant does not supply evidence to establish sufficient grounds, the Court cannot grant equitable relief based on extrinsic fraud.

ii. Extrinsic Mistake

“To set aside a judgment based upon extrinsic mistake one must satisfy three elements. First, the defaulted party must demonstrate that it has a meritorious case. Second, the party seeking to set aside the default must articulate a satisfactory excuse for not presenting a defense to the original action. Last[ly], the moving party must demonstrate diligence in seeking to set aside the default once ... discovered.” (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 982.)

First, we examine if Defendant had a meritorious case. Here Defendant arguably has a meritorious case as he provides the court with his proposed answer in which he generally and specifically denies the allegations made in Plaintiffs complaint. (Motion, Ex. 1.) This is sufficient to demonstrate Defendant has a meritorious case because Defendant challenges the allegations made by the Plaintiff. Thus, Defendant satisfies the first element. 

As for the second element, Defendant provides the Court with a satisfactory excuse for failing to timely answer the original complaint. Here, Defendant states under penalty of perjury that he did not live at the property where service was rendered. (Eric Heredia Decl. ¶ 3.) At the time service was rendered, Defendant resided at 3129 Syracuse Ave., Baldwin Park, CA, 91706 and not 1118 W. Grove, Center Street, Covina, CA, 91722. Defendant further avers that he never received any notice of the instant suit until he received a Notice of License Suspension from the Department of Motor Vehicles around September 2023. (Id. ¶ 4, Ex. 1.) Upon discovering the default and default judgment Defendant sought to meet and confer with Plaintiff. (Id. ¶ 14.) When communications fell through Defendant filed the motion to set aside. (Id.) Thus, Defendant satisfies the second element.

Finally, we examine whether Defendant demonstrated diligence in seeking to set aside the default once it was discovered. Here, Defendant has demonstrated diligence in seeking to set aside the default judgment. First, Defendant states that he discovered the default and default judgment entered against him on September 01, 2023. (Id. ¶ 13.)  Subsequently, Defendant states that he “diligently sought to meet and confer with Plaintiff regarding [a stipulation] to set aside/vacate judgment prior to filing this Motion.” (Id. ¶14.) However, the parties were not able to reach an agreement. (Id.) Additionally, Defendant demonstrates his diligence by subsequently filing this motion to set aside a month after his discovery. Thus, Defendant satisfies the third element. 

Thus, because the Defendant satisfies the three elements to set aside default judgment based on equitable grounds of extrinsic mistake, the Court grants equitable relief in this case.

Accordingly, the Court orders the Defendant to file a properly noticed answer within 10 days of the Court’s ruling.

III.       Conclusion

            Defendant Eric Heredia’s Motion to Set aside/Vacate Default / Default Judgment is GRANTED.

THE DEFAULT AND DEFAULT JUDGMENT ENTERED AGAINST DEFENDANT ERIC HEREDIA ON FEBRUARY 25, 2022, AND FEBRUARY 28, 2023, ARE SET ASIDE AND VACATED. 

THE COURT ORDERS DEFENDANT ERIC HEREDIA TO FILE A PROPERLY NOTICED ANSWER TO THE COMPLAINT WITHIN 10 DAYS OF THIS COURT’S RULING.

TRIAL IN THIS ACTION IS RESET FOR SEPTEMBER 6, 2024 AT 8:30 A.M. IN DEPARTMENT 25 OF THE SPRING STREET COURTHOUSE.

MOTION AND DISCOVERY CUT-OFF DATES ARE TO FOLLOW THE NEW TRIAL

DATE.

            Moving party to give notice.