Judge: Lisa R. Jaskol, Case: 22STCV04270, Date: 2024-03-12 Tentative Ruling

Case Number: 22STCV04270    Hearing Date: March 12, 2024    Dept: 28

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

BACKGROUND 

On February 3, 2022, Plaintiff Ceasar Corona (“Corona”) filed this action against Defendants Ehtesam Shaikh (“Shaikh”) and Does 1-25 for negligence. 

On May 17, 2022, Shaikh filed a general denial and a cross-complaint against Cross-Defendants Corona and Does 1-10 for apportionment of fault and motor vehicle tort. 

On May 19, 2023, the clerk entered Corona’s default on the cross-complaint. 

On September 12, 2023, Corona filed a motion to set aside his default, to be heard on December 5, 2023.  On November 17, 2023, Shaikh filed an opposition. On November 30, 2023, Corona rescheduled the hearing for March 12, 2024. On January 11, 2024, Corona filed an amended motion. 

On January 12, 2024, the Court dismissed Corona’s complaint with prejudice at Corona’s request. 

Trial is currently scheduled for June 7, 2024. 

PARTIES’ REQUESTS 

Corona asks the Court to vacate his default on the cross-complaint. 

Shaikh asks the Court to deny the motion. 

LEGAL STANDARD 

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

“The court . . . may, on motion of either party after notice to the other party, set aside any void judgment or order.” 

(Code Civ. Proc., § 473, subd. (d).) 

          A default is void as a matter of law if it was entered “without service on defendant of [a Code of Civil Procedure section 425.11] statement of damages required in personal injury and death actions.”  (L. Edmon & C. Karnow, Cal. Practice Guide: Civil Procedure Before Trial (Rutter 2023) ¶ 5:485, p. 5-141.) 

DISCUSSION 

          Corona argues that, after Shaikh filed his cross-complaint in May 2022, Shaikh’s counsel attempted to serve the cross-complaint on Corona.  However, Shaikh’s counsel served the cross-complaint on the attorneys who represented Corona in his capacity as the Plaintiff in his complaint.  Shaikh’s counsel did not serve the cross-complaint on the different attorneys who represented Corona in his capacity as the Cross-Defendant in Shaikh’s cross-complaint.

In addition, Shaikh’s counsel did not serve a statement of damages on Corona’s counsel before the clerk entered Corona’s default on Shaikh’s cross-complaint.  (See Code Civ. Proc., § 425.11.) 

          In opposition, Shaikh challenges the motion’s purported deficiencies under Code of Civil Procedure section 473, subdivision (b).  However, Shaikh’s arguments do not apply to Corona’s alternative basis for relief, Code of Civil Procedure section 473, subdivision (d). 

          Shaikh also argues that the proof of service attached to Corona’s motion does not show service on one of Shaikh’s attorneys, Elika Morris.  The proof of service attached to Corona’s original motion, filed on September 12, 2023, shows service on Shaikh’s other attorney, James Miller, but not on Elika Morris.  The proof of service attached to Corona’s amended motion, filed on January 11, 2024, shows service on both Elika Morris and James Miller. 

The Court finds that the default is void under Code of Civil Procedure section 473, subdivision (d), because Shaikh did not serve a statement of damages on Corona before the clerk entered Corona’s default.  The Court sets the default aside. 

CONCLUSION 

The Court GRANTS Cross-Defendant Ceasar Corona’s motion to set aside the default and sets aside the default entered on May 19, 2023. 

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.