Judge Ralph C. Hofer, Case Number: 22GDCV00689, Date: 2023-08-18 Tentative Ruling

Plaintiff Richard Levy alleges that in December of 2020 plaintiff was injured when defendant Renato Abolencia negligently operated a motor vehicle owned by defendant Perla Salvador.

The file shows that moving defendant Abolencia was served with the summons, complaint, and plaintiff’s statement of damages by personal service on November 20, 2022, by a registered California process server.

Moving defendant Salvador was served by a registered process server by substituted service at defendant’s home by service on Abolencia, “Co-occupant,” on November 20, 2022, with follow up mailing on November 21, 2022.

Defendant Abolencia filed a previous motion to set aside default on March 14, 2023, which was heard by the court on June 16, 2023. The motion was denied without prejudice, on various grounds, including that there was no proof of service showing the motion had been served on plaintiff or that plaintiff had notice of the motion, which had not been opposed, that the motion was not supported by a memorandum of points and authorities or admissible evidence, and was not accompanied by a copy of the answer or proposed pleading to be filed.

Defendant Abolencia and defendant Salvador now each file a motion to set aside the default entered against them. The operative motions appear to be the Second Amended Motions, filed on July 17, 2023, and served on July 13, 2023, by electronic service and email.

“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.”

There is no proposed pleading accompanying the motion. Defendants appear to be aware of this requirement, and the moving papers indicate defendants are ready to file proposed answers, which are “attached as Exhibit A” to their declarations. [See Memoranda, p. 5:20-21]. There is an “Exhibit A” tab attached to each motion, but there are no actual exhibits attached, so no proposed answers are on file. It is not clear if the proposed answers were included in the service copies of the moving papers.

Although the language of this section appears jurisdictional, it was long ago held by the California Supreme Court that the “accompanying” language “like the remainder of the section, must be liberally construed with a view to substantial justice…” Los Angeles County v. Lewis (1918) 179 Cal. 398, 400. In Los Angeles County, an answer had been served and offered to the clerk for filing after the default had been entered, so had not been filed, but was in the custody of the clerk. The Court found that although the motion for relief stated it would be based upon an attached answer, but did not attach such answer, the application was “in substance and effect” accompanied by a proposed answer, which was in the custody of the clerk. The Supreme Court noted:

“The plain object of the provision was simply to require the delinquent party seeking leave to contest on the merits, to show his good faith and readiness to at once file his answer in the event that leave is granted by producing a copy of the proposed answer for the inspection of his adversary and the court.”

Accordingly, the Second District has held that where no proposed pleading is proposed to be filed with the motion, “or at all”, the trial court may deny the motion: “This omission, in itself, is sufficient to require an affirmance of the order of the trial court.” La Bonte & Ransom Co., Inc. v. Scellars (2nd Dist 1928) 90 Cal.App. 183, 185, citation omitted.

Here, the attachments are not submitted with the Second Amended motions. However, the file shows that on July 5, 2023, the court accepted for filing Answers of each of the defendants. Those Answers consist of general denials and fifteen affirmative defenses. The Answers were erroneously accepted for filing while the filing defendants were in default and will be ordered stricken by the court. However, the Court will consider whether the Answers sufficiently demonstrate defendants’ good faith and preparedness to promptly file such answers if the motions are granted.

It appears that defendants have until the hearing to submit the proposed pleadings which appear to have been inadvertently omitted from the Second Amended motions, and the Court prefers that defendants in fact submit those proposed pleadings at or before the hearing on this matter, before the court considers the motions.

The trial court’s granting or denial of relief under this provision is reviewed for abuse of discretion. State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 610. It is noted that appellate courts are traditionally “favorably disposed toward such action on the part of the trial courts as will permit, rather than prevent, the adjudication of legal controversies on their merits.” Mercantile Collection Bureau v. Pinheiro (1948) 84 Cal.App.2d 606, 608, citing Benjamin v. Dalmo Mfg. Co. (1947) 31 Cal.2d 523.

The test of whether neglect was excusable is “whether a reasonably prudent person under the same or similar circumstances might have made the same error.” Bettencourt v. Los Rios Community College Dist. (1986) 42 Cal.3d 270, 276.

“2. My failure to timely respond to the Complaint was the result of mistake and excusable neglect. Once I learned of the lawsuit and the default taken against me, I contacted various attorneys.

There is authority under which neglect has been properly considered excusable where an insured had turned the matter over to an insurer. In such a case, it has been held, the relationship between a liability insurer and the insured is analogous to the relationship between a litigant and his attorney, and the insurer’s neglect is ground for discretionary relief under CCP § 473(b). Rogalski v. Nabers Cadillac (1992) 11 Cal.App.4th 816, 821.

In this case, defendants’ showing would be stronger if defendants had pursued the insurer’s involvement before they learned of the default. It is not clear why plaintiffs did not contact attorneys or the insurer until after they learned of the lawsuit and the defaults. The complaint was served on November 20, 2023, and defaults were entered on January 26, 2023. Under the circumstances, the court could find that a reasonable person would not have simply ignored the summons and complaint or failed to promptly retain counsel before the thirty day window to respond to the complaint had expired, or within the additional month before defaults were entered.

However, the cases supporting such a finding generally involve a deliberate refusal to act and facts or circumstances suggesting an after the fact change of mind. In Fidelity Federal Savings & Loan Association (1959 2nd Dist.) 175 Cal.App.2d 149, defendant, a sophisticated businessman, delayed in responding to the complaint, expecting that a defense would materialize through a bankruptcy proceeding, and when he discovered his mistake, three months after he was due to respond, sought relief on the ground of excusable neglect. The Second District fairly broadly observed:

“it is the duty of every party desiring to resist an action or to participate in a judicial proceeding to take timely and adequate steps to retain counsel or to act in his own person to avoid an undesirable judgment. Unless in arranging for his defense he shows that he has exercised such reasonable diligence as a man of ordinary prudence usually bestows upon important business his motion for relief under section 473 will be denied." Other authorities clearly hold that where a default occurred as the result of a deliberate refusal to act and relief is sought after a change of mind, the remedy provided by section 473, Code of Civil Procedure, is clearly inappropriate ( Paulekas v. Paulekas, 117 Cal.App.2d 73 [254 P.2d 941]; Baratti v. Baratti, 109 Cal.App.2d 917 [242 P.2d 22]; Lukasek v. Lukasek, 108 Cal.App.2d 609 [239 P.2d 497]; Weinberger v. Manning, 50 Cal.App.2d 494 [123 P.2d 531]).

While it may appear here that defendants did not react to the summons and complaint with the seriousness they deserved, defendants do not appear to be sophisticated business persons. Defendant Salvador indicates that defendant is “elderly and retired,” and that a default judgment in the amount sought in the complaint “may bankrupt me.” [Salvador Decl., para. 9]. Defendant Abolencia makes the same representation. [Abolencia Decl., para. 9]. There is nothing from the moving papers that suggests that defendants have undergone some change of mind or engaged in a strategy which would now prejudice plaintiff. The defendants are continuing to pursue the insurer, and they point out that, “In fact, it would be in Plaintiff’s best interests if I could secure insurance for this lawsuit to help pay for any judgment assuming Plaintiff could prove his case against us.” [Salvador Decl., para. 7].

Defendants also indicate that they have defenses to the complaint which they would like the opportunity to pursue, including the driver’s belief that “it was Plaintiff who ran the red-light thus causing the accident,” that plaintiff’s alleged damages were not caused by the accident, or are inflated, and that plaintiff “did not have auto insurance at that time that may be preclude him from recovery of non-economic damages pursuant to Civil Code section 3333.3 and 3333.4.” [Abolencia Decl., paras 10-12; Salvador Decl., paras. 10-12].

In addition, there is no opposition here, so no showing that there would be any prejudice to plaintiff, and it does not appear from the file that any prejudice would arise from permitting relief and allowing this matter to be tried on its merits. Under all of the circumstances, the plaintiffs were not unreasonable in failing to formally pursue defending this matter until a month after the time to respond to the pleading had expired, believing that the insurer would take over the defense, and pursue what could be legitimate defenses. The Court finds that the defaults were entered due to defendants’ excusable neglect, and that this situation is an appropriate matter in which to apply the policy favoring permitting the adjudication of legal controversies on their merits. The motions accordingly is granted.

Defendant is ordered to efile a separate signed copy of the Answer submitted as Exhibit A to the motion (if the Exhibit is in the file by the hearing), or, in the alternative, an answer in substantially the same form as the Answer previously erroneously accepted for filing on July 5, 2023. The Answer is ordered to be efiled by close of business this date, and the Answer will be deemed served upon filing.

The Court, on its own motion and in its discretion, pursuant to CCP § 436, orders the Answer filed on behalf of moving defendant on July 5, 2023 stricken from the file, as the pleading was not filed in conformity with the laws of this state, as the pleading was accepted for filing at a time when a default had been entered against defendant.

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