Judge: Lisa R. Jaskol, Case: 21STCV46609, Date: 2023-12-08 Tentative Ruling

Case Number: 21STCV46609    Hearing Date: December 8, 2023    Dept: 28

Having considered the moving, opposing and reply papers, the Court rules as follows. 

BACKGROUND 

On December 22, 2021, Plaintiff Patricia Durazo-Perez (“Plaintiff”) filed this action against Defendants State of California (“State”), City of Los Angeles (“City”), County of Los Angeles (“County”), and Does 1-15 for general negligence and premises liability—negligence and dangerous condition of public property. 

On November 1, 2022, the County filed an answer. 

On April 11, 2023, the clerk entered the City’s default. 

On June 6, 2023, the City filed an answer and a cross-complaint against the State, the County, and Roes 1-10 for apportionment of fault, indemnification, and declaratory relief. 

On August 4, 2023, the State filed an answer. 

On October 9, 2023, the City filed a motion to vacate default to be heard on December 8, 2023. On November 21, 2023, Plaintiff filed an opposition. On December 1, 2023, the City filed a reply. 

No trial date is currently scheduled. 

PARTIES’ REQUESTS 

The City asks the Court to set aside the entry of default. 

Plaintiff asks the Court to deny the motion. 

LEGAL STANDARD 

          Code of Civil Procedure section 473, subdivision (b), provides in part: 

“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. 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 proceeding was taken. . . .” 

(Code Civ. Proc., § 473, subd. (b).) 

DISCUSSION 

The City asserts that it inadvertently overlooked this lawsuit due to the large caseload handled by the General Litigation Division of the City Attorney’s Office as well as the office’s unprecedented staffing issues. 

The City timely filed the motion and submitted a proposed answer.  The motion establishes that the City’s default resulted from its mistake, inadvertence, surprise or excusable neglect.  The Court exercises its discretion to grant the motion. 

The City’s answer and cross-complaint filed June 6, 2023 are not properly before the Court because the City was in default when it filed them.  If the City wishes to have the answer and cross-complaint considered, it must re-file and serve these pleadings. 

CONCLUSION 

The Court GRANTS the motion to vacate default filed by Defendant City of Los Angeles.  The Court vacates the default entered on April 11, 2023.  

The Court sets an Order to Show Cause Re: Entry of Default for January 9, 2024, at 8:30 a.m. in Department 28 of the Spring Street Courthouse. 

Moving party is ordered to give notice of this ruling. 

Moving party is ordered to file the proof of service of this ruling with the Court within five days.