Judge: Lisa R. Jaskol, Case: 22STCV10003, Date: 2023-10-05 Tentative Ruling

Case Number: 22STCV10003    Hearing Date: February 29, 2024    Dept: 28

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

BACKGROUND 

On March 22, 2022, Plaintiff Abdi Manavi filed a complaint against Defendants Jan’s Towing, Inc. (“Jan’s”), Ritter Lien Sales, Inc., Abdulla Yaghi, and Does 1 to 20 alleging claims for general negligence, motor vehicle tort, and intentional tort. 

On May 12, 2022, Jan's and Abdalla Yaghi, erroneously sued as Abdulla Yaghi (“Yaghi”), filed an answer. 

Also on May 12, 2022, Cross-Complainant Jan’s and purported Cross-Complainant Route 66 Car Wash, Inc.[1] (“Route 66”) filed a cross-complaint against Cross-Defendants Abdi Manavi, Auto Care, Inc., Eric Raymond Fascia (“Fascia”), and Roes 1-20 for apportionment of fault, indemnification, third party tort of another, breach of contract, and common counts. 

On May 27, 2022, the Court dismissed Ritter Lien Sales, Inc. without prejudice at Plaintiff’s request. 

On June 16, 2022, Plaintiff/Cross-Defendant Abdi Manavi filed an answer to the cross-complaint. 

On August 14, 2023, the Court entered Fascia’s default on the cross-complaint. 

On January 5, 2024, Fascia filed a motion to vacate default to be heard on February 29, 2024.  No opposition has been filed.

Trial is currently scheduled for September 16, 2024. 

PARTY’S REQUEST 

Fascia asks the Court to set aside his default. 

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 

          Fascia has submitted a declaration stating that he failed to file a timely response to the cross-complaint because he did not understand that he needed to respond.  When he received notice of the default, he consulted with counsel and is now prepared to file an answer. 

The Court grants the motion. 

CONCLUSION 

The Court GRANTS Cross-Defendant Eric Raymond Fascia’s motion to set aside the default.  The Court sets aside the default entered on August 14, 2023.  The Court orders Cross-Defendant Eric Raymond Fascia to file an answer or other responsive pleading within five days of the hearing on this motion. 

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. 

[1] “A cross-complaint may be filed by the original defendant or by anyone against whom a cross-complaint has been filed.”  (L. Edmon & C. Karnow, Cal. Practice Guide: Civil Procedure Before Trial (Rutter 2023) ¶ 6:501, p. 6-154, citing Code Civ. Proc., § 428.10.)  The court’s records do not show that a complaint or cross-complaint was filed against Route 66.