Judge: Olivia Rosales, Case: BC629958, Date: 2022-10-18 Tentative Ruling

Case Number: BC629958    Hearing Date: October 18, 2022    Dept: SEC

OH v. TEACHERS INSURANCE AND ANNUITY, et al.

CASE NO.:  BC629958

HEARING: 10/18/22 @ 9:30 AM

#3

TENTATIVE RULING

Proposed Intervenor Mesa Underwriters Specialty Insurance Company’s motion to set aside judgment against Cross-Defendant IBS Beauty, Inc. is DENIED.

Opposing Party to give NOTICE.

Proposed Intervenor Mesa Underwriters Specialty Insurance Company (“Mesa”) moves to set aside the judgment entered against Cross-Defendant IBS Beauty, Inc. pursuant to CCP § 473. 

Procedural Background

This is a wrongful death action commenced on August 12, 2016 by Decedent Ji Oh’s survivors against Teachers Insurance and Annuity Association of America (“TIAA”) and its property managers.  The Complaint alleges that on March 7, 2016, Decedent Oh was dispensing a hair care product IBS sold, when the drum exploded and a fire engulfed decedent.  IBS is wholly owned by CEO, Daniel Kim.

On January 18, 2018, TIAA cross-complained against Kim, IBS, and Prosys. 

On May 17, 2018, the Court entered default against IBS and Prosys.

On December 22, 2021, the court granted TIAA, Kim, and Prosys’s Stipulation for Entry of Judgment on TIAA’s Cross-Complaint.

Merits

“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.”  (CCP § 473(b).)

Initially, the court notes that Mesa has no standing to bring the motion on behalf of IBS.  The initial entry of default was taken against IBS on May 17, 2018.  Neither IBS nor IBS’s attorney filed this motion.  Instead, Mesa contends that as IBS’s insurer, it is acting as a “legal representative.”  This proposition is not supported by any legal authority.  CCP § 473(b) relieves “a party or his or her legal representative” from proceedings taken against them.  Neither IBS nor its attorney has filed this motion, and Mesa has not demonstrated that it is IBS’s legal representative.

Mesa is IBS’s insurance company.  TIAA served Mesa by mail and email with a policy limits demand in October of 2018. (Dooley Decl., Ex. B.)  Pursuant to Ev. Code § 641, the “letter correctly addressed and properly mailed is presumed to have been received in the ordinary course of mail.”  The email did not “bounce,” was not returned, and TIAA received no indication that the email address for Jon Abood was invalid. (Dooley Decl., ¶ 2.) The letter was validly mailed from TIAA’s counsel’s office, and it was properly addressed, stamped and sent to Mesa.  (Id.)  Mesa failed to tender a defense on behalf of IBS, or timely sought leave to intervene in this action.

Further, “[a]pplication 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.”  (CCP § 473(b).)

Here, IBS’s default was entered on May 17, 2018 and the Judgment was rendered on December 22, 2021.  The instant motion is untimely because it was filed on August 30, 2022, more than six months after entry of default and default judgment.

The motion is DENIED.