Judge: Michelle C. Kim, Case: 22STCV35851, Date: 2023-08-14 Tentative Ruling

Case Number: 22STCV35851    Hearing Date: August 14, 2023    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

 

GERARDO SANCHEZ, 

Plaintiff(s), 

vs. 

 

JESUS GARCIA GARFIAS, ET AL., 

 

Defendant(s). 

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      CASE NO: 22STCV35851 

 

[TENTATIVE] ORDER GRANTING PLAINTIFF’S MOTION TO VACATE DEFAULT 

 

Dept. 31 

1:30 p.m.  

August 14, 2023 

 

1. Background 

Plaintiff, Gerardo Sanchez (“Plaintiff”) filed this action against Defendant Jesus Garcia Garfias (“Defendant”) for damages arising out of an automobile accident.  On February 8, 2023, Plaintiff obtained Defendant’s default.   

On June 1, 2023, Defendant filed the instant motion to set aside the default.  Plaintiff opposes the motion, and Defendant filed a reply.   

 

  1. Moving Argument 

Defendant asserts that he was served by substituted service on December 13, 2022. On January 27, 2023, Veatch Carlson, LLP was assigned as defense counsel, and no default had been entered yet. Defense counsel avers that it was defense counsel’s mistake and excusable neglect in failing to immediately contact Plaintiff’s counsel to request an extension or immediately file a responsive pleading. On February 8, 2023, Plaintiff obtained entry of default. Defense counsel asserts that once the mistake was discovered on March 20, 2023, that defense counsel immediately contacted Plaintiff’s counsel to request a stipulation to set aside default. On March 22, 2023, Plaintiff’s counsel responded that she would check with Plaintiff. On March 27, 2023, defense counsel asserts that due to internal miscommunication, an Answer was filed on behalf of Defendant, jury fees posted, and discovery propounded. On March 30, 2023, defense counsel withdrew the propounded discovery and requested Plaintiff to set aside the default. According to the communication between counsels for Plaintiff and Defendant, Plaintiff’s counsel indicated she would recommend that Plaintiff stipulate to set aside default, but ultimately there was no response regarding the stipulation. Defendant seeks a nunc pro tunc order to set aside entry of default so that Defendant’s Answer may stand, or in the alternative for an order to withdraw Defendant’s Answer and set aside the default and allow Defendant to file a timely Answer to the complaint. 

 

  1. Opposing Argument 

In opposition, Plaintiff asserts that he effectuated personal service on Defendant, not substituted service. Plaintiff’s counsel avers that prior to requesting entry of default, Plaintiff’s counsel called Defendant’s adjuster Lauren Pharr (“Ms. Pharr”) to inquire if Defendant was going to file a timely Answer. Plaintiff’s counsel left a voicemail message and Ms. Pharr did not respond. Accordingly, Plaintiff’s counsel applied for default. Plaintiff argues that mandatory relief is not available because Defendant was not represented by counsel yet, because an adjuster was handling the case at the time the responsive pleading was due. Plaintiff further contends that defense counsel did not explain how its mistake or neglect occurred. Lastly, Plaintiff objects to the request for an order issued nunc pro tunc because a nunc pro tunc order is to correct clerical issues, and would deprive Plaintiff the opportunity to demur or strike Defendant’s Answer.  

 

  1. Reply 

In reply, Defendant concedes that service of the complaint was by personal service, and that defense counsel mistakenly wrote substituted service in its motion. Furthermore, Defendant avers that default was obtained after Defendant had retained counsel, and that because the request for relief from default was timely made within six months of default, mandatory relief is available. Defense counsel further argues that it was retained twelve days prior to default being taken, and that it was the mistake of defense counsel for failure to promptly investigate the case to determine if there were any impending deadlines. Furthermore, Defendant avers that Ms. Pharr is an insurance adjuster and not legal counsel.  

 

2. Legal Standard 

CCP § 473(b) states in pertinent part: 

 

Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect. The court shall, whenever relief is granted based on an attorney's affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties…  

 

“To obtain mandatory relief under section 473, plaintiffs' counsel need not show that his or her mistake, inadvertence, surprise or neglect was excusable. No reason need be given for the existence of one of these circumstances. Attestation that one of these reasons existed is sufficient to obtain relief, unless the trial court finds that the dismissal did not occur because of these reasons.”  (Graham v. Beers (1994) 30 Cal.App.4th 1656, 1660; accord. Leader v. Health Indus. of America, Inc. (2001) 89 Cal.App.4th 603, 616 [“The range of attorney conduct for which relief can be granted in the mandatory provision is broader than that in the discretionary provision, and includes inexcusable neglect”.].)   

 

In this case, the underlying default was entered on February 8, 2023, and the instant motion was filed on June 1, 2023, which is within six months from the date of the dismissal. Consequently, the motion is timely.   

Further, the Court finds defense counsel’s declaration establishes excusable mistake or neglect for failure to immediately file a responsive pleading, as default had yet to be obtained at the time defense counsel was retained, and for failing to request an extension of time from Plaintiff’s counsel prior to entry of default.  Even if the mistake or neglect was inexcusable, under section 473’s mandatory relief, defense counsel is not obligated to provide a reason for its mistake or neglect, and the range of conduct for mandatory relief is broad. 

Although Plaintiff’s counsel avers it contacted Defendant’s insurance adjuster Ms. Pharr to inquire as to whether a responsive pleading would be filed and left a voicemail of the same, Plaintiff’s counsel seemingly did not advise Ms. Pharr it intended to have Defendant’s default entered prior to doing so.  “Warning and notice play a major role” in assessing whether a default should be set aside.  (Lasalle v. Vogel (2019) 36 Cal.App.5th 135.)  “Unintended defaults inevitably result in motions to overturn them (this case, exemplary in no other way, demonstrates well the resources consumed by such motions).”  (Id.)  Warning is no less meaningful when a party might be unrepresented, as a self-represented litigant, in particular, would benefit from receiving notice that his or her default will be taken. Furthermore, it is undisputed that Plaintiff’s counsel was aware that Ms. Pharr was the insurance adjuster handling the matter prior to default being taken, and Plaintiff similarly did not notify Defendant’s insurer of Plaintiff’s intent to obtain Defendant’s default.   

Pursuant to the policy favoring deposing of cases of their merits, these facts warrant setting aside the default entered against Defendant.  (Taliaferro v. Taliaferro (1963) 217 Cal.App.2d 216, 220 [“It is the policy of the law that every case should be heard upon the merits where possible; that a motion to set aside a default is one addressed to the sound discretion of the court; that the ruling on such motion will not be reversed in the absence of a clear showing of abuse of discretion; that section 473 is a remedial provision to be liberally construed to the end that cases be disposed of upon their merits.”].) Therefore, the motion is granted in terms of setting aside the default obtained against Defendant. The Court declines to issue a nunc pro tunc order to grant this motion and retroactively date it as March 24, 2023, because it would substantially modify and materially alter the parties’ rights. An order nunc pro tunc is to correct clerical errors, and there is no clerical error here. Defendant’s citation to Hamm v. Elkin, (1987) 196 Cal.App.3d 1343 is unpersuasive, because the issue presented in Hamm was specific to resolving a procedural issue involving an appeal since the trial court failed to enter a minute order setting aside default and default judgment. There is no such issue here.  

The motion is therefore granted pursuant to CCP § 473(b).  The default obtained against Defendant is set aside, and Defendant’s Answer filed on March 27, 2023 is vacated. Defendant is ordered to re-file his Answer within ten (10) days.   

 

Defendant is ordered to give notice. 

 

PLEASE TAKE NOTICE: 

  • Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement. 

  • If a party intends to submit on this tentative ruling,¿the party must send an email to the court at¿sscdept31@lacourt.org¿with the Subject line “SUBMIT” followed by the case number.¿ The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.¿¿ 

  • Unless¿all¿parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.¿ You should assume that others may appear at the hearing to argue.¿¿ 

  • If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.¿ After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave.¿ 

 

Dated this 11th day of August 2023 

 

  

 

 

Hon. Michelle C. Kim 

Judge of the Superior Court