Judge: Latrice A. G. Byrdsong, Case: 22STLC05895, Date: 2024-05-30 Tentative Ruling
Case Number: 22STLC05895 Hearing Date: May 30, 2024 Dept: 25
Hearing Date: Thursday, May 30, 2024
Case Name: STATE
FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. JAVIER HERRERA, an individual; and DOES
1 to V, inclusive
Case No.: 22STLC05895
Motion: Motion to Vacate Entry of Default
and Default Judgment
Moving Party: Defendant
Javier Herrera
Responding Party: Plaintiff State Farm Mutual
Automobile Insurance Company
Notice: OK
Tentative Ruling: The Court GRANTS the Motion
to Vacate Default (Entered on 09/21/2023) and Default Judgment (entered on
12/01/2023) CONTINGENT ON Defendant filing with the Court and serving on all
parties his answer to Plaintiff’s complaint within 5 days of this Court’s
ruling.
The Court resets TRIAL in this action for JANUARY 13, 2025,
at 8:30 a.m.in Department
25 of the Spring Street Courthouse.
Discovery and all other trial-related deadlines
are 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 / Exhibit Binder,
and to personally appear on the date of trial.
BACKGROUND
On September
9, 2022, Plaintiff State Farm Mutual Automobile Insurance Company (“Plaintiff”)
filed a Complaint against Defendant Javier Herrera (“Defendant”) and DOES 1 to
10 alleging a single cause of action for Subrogation.
On August
17, 2023, Plaintiff filed a Proof of Service indicating that Defendant was
served by personal service with the summons and complaint on August 13, 2023.
The proof of service is executed by a registered process server.
On September
21, 2023, default was entered against Defendant.
On
December 1, 2023, judgment was entered in favor of Plaintiff and against
Defendant in the amount of $17,743.92.
On March
20, 2024, Defendant filed and served the instant Motion to Vacate Entry of
Default and Default Judgment. On May 14, 2024, Plaintiff filed an opposition to
the motion, to which Defendant replied on May 22, 2024.
Initially,
the Court notes that Defendant’s motion was not filed with a proposed answer.
MOVING PARTY
POSITION
Defendant
contends that as a result of prior counsel’s mistake, inadvertence, surprise,
or excusable neglect, Defendant failed to file an answer.
Plaintiff
argues that Defendant’s claim of mistake is not legally sufficient.
REPLY
Defendant
argues that he is entitled to relief under CCP § 473(b) and that he is entitled
to equitable relief under CCP § 128(a)(8).
ANALYSIS
I. Vacating
the Default and Default Judgment
A.
Legal Standard
“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, subd. (b).) Relief under CCP § 473(b) is mandatory when based on an
attorney affidavit of fault; otherwise, it is discretionary. Ibid. “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,
and shall be made within a reasonable time, in no case exceeding six months,
after the judgment, dismissal, order, or other proceeding was taken.” Ibid.
“It is well settled that appellate courts have always been and are favorably
disposed toward such action upon the part of the trial courts as will permit,
rather than prevent, the adjudication of legal controversies upon their
merits.” Benjamin v. Dalmo Mfg. Co. (1948) 31 Cal.2d 523, 525.
“[B]ecause the law strongly favors trial and disposition on the merits, any
doubts in applying section 473 must be resolved in favor of the party seeking
relief from default.” Elston v. City of Turlock (1985) 38 Cal.3d 227, 233.
B. Discussion
Jon E. Hellesen relevantly declares
that Martinez, Dieterich & Zarcone Legal Group (“MDZ”) is in-house counsel
for Defendant’s insurance carrier, Loya Casualty Insurance Company (“Loya”).
(Hellesen Decl., ¶ 4.) Once a complaint is filed against a Loya insured in
California, MDZ represents the respective defendant and is responsible for
monitoring the Court docket to determine whether and when a defendant is
properly served with a complaint as a result of the automobile accident.
(Hellesen Decl., ¶ 4.) This matter was not assigned to Mr. Hellesen until
September 27, 2023, and the lack of attorneys and support staff directly led to
this case not being assigned to any attorney. (Hellesen Decl., ¶ 5.) The lack
of staff is the basis for Defendant’s surprise and excusable neglect as the
status of the firm’s workforce was outside of the Defendant and handling
attorney’s control. (Hellesen Decl., ¶ 5.)
On reply, Mr. Hellesen declares that
this matter was not assigned to him until September 27, 2023. (Hellesen Reply
Decl., ¶ 5.) Mr. Hellesen states that the mistake of failing to submit a timely
response on behalf of Defendant was not discovered until he was reassigned to
this case. (Hellesen Reply Decl., ¶ 5.) Defendant was not negligent in failing
to answer on his behalf but rather the surprise and excusable neglect as the
status of the firm’s workforce was outside of the Defendant’s control and
placed him in a position that led to judgment being entered against him.
(Hellesen Reply Decl., ¶ 5.) During this time, counsel was diagnosed with a
serious medical condition for which he was receiving significant medical
treatment. (Hellesen Reply Decl., ¶ 6.) Unfortunately, this necessitated counsel
adjusting his work schedule, and at times resulted in unintentional delays,
mistakes, and oversights on certain cases. (Hellesen Reply Decl., ¶ 6.)
Plaintiff’s counsel and the firm were aware of the issue and were cooperative
with counsel as he worked to complete his treatment and discovery. (Hellesen
Reply Decl., ¶ 6.)
In opposition to the motion,
Plaintiff’s counsel, Breanne L. Reese (“Reese”) provides a declaration. Ms.
Reese relevantly declares that, on September 15, 2022, her office emailed Fred
Loya a courtesy copy of the summons and complaint before filing them with the
Court. (Reese Decl., ¶ 11.) On August 13, 2023, Defendant was personally served
with the summons and complaint. (Reese Decl., ¶ 12.) A proof of service was
filed with the Court on August 17, 2023. (Reese Decl., ¶ 13; Exh. 3.)
The Court finds that the motion is
timely. Here, default was entered on September 21, 2023, and default judgment
was issued on December 1, 2023. The instant motion was filed on March 20, 2024,
which is within the six-month deadline set forth in CCP § 473(b).
The Court finds that Defendant has
shown inadvertence in failing to file a timely Answer as counsel has attested that
the lack of attorneys and support staff led to Defendant’s default. The Court
acknowledges—and Defendant does not dispute—that Defendant was served with the
summons and complaint on August 13, 2023. However, Defendant’s counsel attests
that the failure to file a timely answer was outside of Defendant’s control due
to staffing issues. The opposition does not address Defendant’s arguments pertaining
to inadvertence and surprise.
The Court, however, notes that
Defendant did not file a proposed answer with the motion as required by CCP §
473(b).
II. Conclusion
The Court resets TRIAL
in this action for JANUARY 13, 2025, at 8:30 a.m.in
Department
25 of the Spring Street
Courthouse.
Discovery and all other trial-related deadlines
are 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 / Exhibit Binder,
and to personally appear on the date of trial.
Moving party is ordered to give
notice.