Judge Lynette Gridiron Winston, Case Number: 24PSCV00657, Date: 2025-06-10 Tentative Ruling

Judge: Lynette Gridiron Winston, Case: 24PSCV00657, Date: 2025-06-10 Tentative Ruling

Case Number: 24PSCV00657 Hearing Date: June 10, 2025 Dept: 6

CASE NAME: Nabor Menchaca Murillo, et al. v. Melvin Carrera

Defendant Melvin Carrera’s Motion to Set Aside Default

TENTATIVE RULING

The Court GRANTS Defendant Melvin Carrera’s motion to set aside default. The Court hereby VACATES the default entered against Defendant Melvin Carrera on March 20, 2025, and directs Defendant Carrera to file and serve the proposed answer attached to the moving papers within five calendar days of the Court’s order.

Defendant Melvin Carrera is ordered to give notice of the Court’s ruling within five calendar days of this order.

BACKGROUND

This is an auto accident case. On March 4, 2024, plaintiffs Nabor Menchaco Murillo and Leticia Murillo (collectively, Plaintiffs) filed this action against defendant Melvin Carrera (Defendant) and Does 1 to 50, alleging causes of action for motor vehicle and general negligence.

On March 20, 2025, the clerk entered default against Defendant.

On May 14, 2025, Defendant moved to set aside the default. On May 28, 2025, Plaintiff opposed the motion. Defendant did not reply.

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, subd. (b).) Relief under this section is mandatory when based on an attorney affidavit of fault; otherwise, it is discretionary. (Ibid.) 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. (Ibid.; English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 143.)

DISCUSSION

Summary of Arguments

Defendant seeks to set aside the default on the grounds that there was a lapse in communication between Defendant’s insurer’s claims department and legal department after Defendant notified his carrier of the lawsuit, which resulted in a lack of prompt and appropriate action being taken on behalf of Defendant. Defendant contends the six-month statutory period for relief under Code of Civil Procedure section 473, subdivision (b), has not yet expired. Defendant also contends that he is also entitled to setting aside the default on grounds of extrinsic mistake. Defendant contends he has a meritorious defense to the underlying claims, which will be demonstrated in the responsive pleading submitted with this motion, and that he has a valid excuse for failure to respond to the lawsuit due to the confusion, misunderstanding, and lack of communication from his claims administrators. Defendant contends his insurer’s legal department did not receive any notice or communication regarding this matter from its claims department until April 8, 2025, after which Defendant’s counsel acted immediately to rectify this matter by seeking to set aside the default by stipulation to no avail. Defendant contends his counsel acted diligently upon receiving the case on April 8, 2025. Defendant further contends Plaintiffs will suffer no prejudice beyond some delay, whereas Defendant would suffer substantial prejudice if not given an opportunity to defend himself on the merits.

In opposition, Plaintiffs contend their counsel communicated with Defendant’s insurer multiple times over many months following service of the summons and complaint about the lack of responsive pleading to the complaint, but to no avail. Plaintiffs contend Code of Civil Procedure section 473, subdivision (b), is inapplicable to Defendant’s insurer because the mistake was the result of the insurer and not Defendant or Defendant’s attorney. Plaintiffs contend relief under Code of Civil Procedure section 473, subdivision (b), is unavailable based on Scognamillo v. Herrick (2003) 106 Cal.App.4th 1139 (Scognamillo), in which the Court of Appeal affirmed a denial of a motion to set aside a default based on the insurer’s inexcusable neglect in failing to respond to the complaint. Plaintiffs contend there is no showing that Defendant’s insurer’s inaction was excusable, as there is no explanation what Defendant’s insurer did when it received the complaint, whether it acted diligently, and whether any inaction by the insurer in handling the complaint was excusable. Plaintiffs contend there are zero mentions as to what procedures are in place or who failed to follow the system, and there is no declaration from Defendant’s insurer.

Analysis

The Court finds Plaintiffs’ reliance on Scognamillo unavailing, as that case is factually distinguishable. In Scognamillo, the plaintiff’s counsel spoke with the defendant directly on three separate occasions about the lawsuit and advised the defendant at least twice about the need to file a responsive pleading or risk entry of default. (Scognamillo, supra, 106 Cal.App.4th at p. 1144; see also Fasuyi v. Permatex, Inc. (2008) 167 Cal.App.4th 681, 699 (Fasuyi) [factually distinguishing Scognamillo by noting that the plaintiff’s counsel in that case spoke with the defendant directly three times before requesting entry of default].)

Here, Plaintiffs’ counsel never once contacted Defendant after service of the summons and complaint or before requesting entry of default. (See Lopez Decl., ¶¶ 3-16.) Plaintiffs presented no evidence that Defendant knew or had reason to know his insurer was not handling his claim or that he was at risk of default being entered against him. (See generally, Lopez Decl.) Plaintiffs instead only provided evidence of Plaintiffs’ counsel sending multiple emails to Defendant’s insurer over many months, to which Defendant’s insurer did not respond. (See Lopez Decls., Exs. 1-8.) Defendant, on the other hand, tendered his claim to his carrier within less than a week of being served, and his carrier advised him that it would handle the matter for him. (Carrera Decl., ¶ 3; Proof of Personal Service (9/17/24); see Fasuyi, supra, 167 Cal.App.4th at pp. 700-701, fn. 9 [noting the insurance broker’s reasonable belief that the carrier was handling the matter after tendering the claim and noting that an insurance broker is the representative of the insured]; see also Roussey v. Ernest W. Hahn, Inc. (1967) 251 Cal.App.2d 251, 257 [finding extrinsic mistake where codefendant stated that his insurance carrier would handle the matter].)

Moreover, Defendant’s motion is timely made within six months’ entry of the default, and there would be no prejudice to Plaintiffs other than a delay of a few months. (Code Civ. Proc., § 473, subd. (b); Fasuyi, supra, 167 Cal.App.4th at p. 696.) Policy also favors adjudication on the merits. (Ibid.)

Finally, it is unclear to the Court why Plaintiffs’ counsel persisted in only emailing Defendant’s insurer when Defendant’s insurer was not responding to those emails, or why Plaintiffs’ counsel did not otherwise contact Defendant to apprise him directly of the risk of entry of default given the lack of response from Defendant’s insurer. (See Lopez Decl., Exs. 1-8.) It is also unclear to the Court why on April 1, 2025, i.e., after entry of default, Plaintiffs’ counsel provided Defendant’s insurer with a conformed copy of the request for entry of default and asked the insurer to assign counsel to Defendant, but once Defendant had counsel on April 22, 2025, Plaintiffs’ counsel refused to stipulate to set aside the default. (See Lopez Decls., Exs. 7-8.)

The Court declines to address the parties’ other arguments. Based on the foregoing, the Court GRANTS the motion.

CONCLUSION

Defendant Melvin Carrera is ordered to give notice of the Court’s ruling within five calendar days of this order.

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