Judge Ronald F. Frank, Case Number: 23TRCV01935, Date: 2024-08-06 Tentative Ruling

Judge: Ronald F. Frank, Case: 23TRCV01935, Date: 2024-08-06 Tentative Ruling

Case Number: 23TRCV01935 Hearing Date: August 6, 2024 Dept: 8

Tentative Ruling¿

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HEARING DATE: August 6, 2024¿¿

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CASE NUMBER: 23TRCV01935

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CASE NAME: Richard Colburn v. BMX Racing Group Inc.

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MOVING PARTY: Respondent, BMX Racing Group, Inc.

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RESPONDING PARTY: Plaintiff, Richard Colburn

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DISPOSED OF DATE: December 15, 2023

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MOTION:¿ (1) Motion to Set Aside Default

Tentative Rulings: (1) CONTINUED to allow Plaintiff a sur-reply to address the new matters first raised in the moving party’s reply brief. Parties should be prepared to discuss timing for the sur-reply to be filed and for a continued hearing

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I. BACKGROUND¿¿

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A. Factual¿¿

On June 15, 2023, Plaintiff, Richard Colburn (“Plaintiff”) filed a product liability complaint against Defendant, BMX Racing Group, Inc., a California corporation, dba BRG, and DOES 1 through 100. The complaint alleges causes of action for: (1) Design Defect; (2)Manufacturing Defect; (3) Failure to Warn – Inadequate Warning – Inadequate Instruction; (4) Negligent Design; (5) Negligent Manufacture; (6) Failure to Warn – Inadequate Warning – Inadequate Instruction; (7) Breach of Warranty; and (8) Malfunction Theory – Res Ipsa Loquitur. The complaint is based on the allegations that Defendants designed, engineered, manufactured, sold, distributed, marketed, packaged, labeled, constructed, tested, inspected, warrantied, and/or performed other work in connection with defective Crank Arms with the specific purpose that they be used by riders on their bicycles. (Complaint, ¶ 14.) Specifically, the plaintiff alleges that the crank arm was lauded as a safe product, of merchantable quality, and fit for its intended and reasonably foreseeable uses, but that Defendants failed to disclose that their crank arms were unsafe, and posed a substantial risk that they would break, resulting in injury to the rider of the bicycle. (Complaint, ¶¶ 14, 16.)

On September 1, 2023, Plaintiff filed a Request for Default on Defendant, BMX Racing Group, Inc. (“BMX”). On December 15, 2023, this request was granted and Default Judgment was entered. Now, BMX has filed a motion to set aside the default judgment.

B. Procedural

On June 17, 2024, Defendant BMX filed this Motion to Set Aside Default and Default Judgment. On July 24, 2024, Plaintiff filed an opposition brief. On July 30, 2024, Defendant BMX filed a reply brief.

II. ANALYSIS¿

A. Legal Standard

The Motion is brought under Code of Civil Procedure section 473.5.

Courts may set aside a default or default judgment due to lack of actual notice. Code of Civil Procedure section 473.5 states:

“(a) When service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action. The notice of motion shall be served and filed within a reasonable time, but in no event exceeding the earlier of: (i) two years after entry of a default judgment against him or her; or (ii) 180 days after service on him or her of a written notice that the default or default judgment has been entered.

(b) A notice of motion to set aside a default or default judgment and for leave to defend the action shall designate as the time for making the motion a date prescribed by subdivision (b) of Section 1005, and it shall be accompanied by an affidavit showing under oath that the party’s lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect. The party shall serve and file with the notice a copy of the answer, motion, or other pleading proposed to be filed in the action.

(c) Upon a finding by the court that the motion was made within the period permitted by subdivision (a) and that his or her lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect, it may set aside the default or default judgment on whatever terms as may be just and allow the party to defend the action.”

Further, pursuant to Code of Civil Procedure §473(b), both discretionary and mandatory relief is available to parties from a judgment, dismissal, or other proceeding. Discretionary relief is available under the statute as “the court may, upon any terms as may be just, relieve a party or his or her legal representative from judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. (Code of Civ. Proc. §¿473(b).) Alternatively, mandatory relief is available when “accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect.” (Ibid.) Under this statute, an application for discretionary or mandatory relief must be made no more than six months after entry of the judgment, dismissal, order, or other proceeding from which relief is sought. (Code Civ. Proc., § 473(b); English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 143.)

“‘[W]hen relief under section 473¿is¿available, there is a strong¿public¿policy¿in¿favor¿of granting relief and allowing the requesting party his or her day in court…[Citation.]” (Rappleyea v. Campbell¿(1994) 8 Cal. 4th 975, 981-82.)

B. Discussion

Here, Defendant BMX is moving to set aside the default judgment on the grounds that it argues it was not given personal notice through its agent of service for process, but that instead, Plaintiff insufficiently attempted substituted service.

As noted by Plaintiff in his opposition, Defendant BMX does not state which portion of the statute it is relying on in bringing this motion. Although this could be grounds to deny the motion, as noted by Plaintiff, in the interest of judicial efficiency, this Court nonetheless rules on this matter. Defendant BMX clarifies in its reply brief that it is moving for relief under Code of Civil Procedure section 473 subdivision (b). If this is true, however, this raises an issue as to whether this motion is timely. While a Section 473.5 motion may be brought within two years, an application for discretionary or mandatory relief must be made no more than six months after entry of the judgment, dismissal, order, or other proceeding from which relief is sought. (Code Civ. Proc., § 473(b); English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 143.) Here, the clerk’s default was entered on September 1, 2023. If Defendant BMX sought relief from that entry, it would have had to bring this motion by March 1, 2024. Further, Default Judgment was entered in this case on December 15, 2023. Thus, this motion would have been required to be brough on or before June 15, 2024. Nonetheless, the motion was not brought until June 17, 2024, and is thus, untimely. However, as noted by BMX, June 15, 2024 was a Saturday, and therefore, a filing on the next Court date, June 17, 2024, would render the motion timely. (See California Rules of Court, Rule 1.10(a).)

Because this motion is timely, this Court must now analyze whether Defendant BMX’s failure to respond was truly due to mistake, inadvertence, surprise, or excusable neglect pursuant to Code of Civil Procedure section 473(b). But the arguments made as to 473(b) relief are not made until the reply papers, not the moving papers. Because new arguments are not to be made on reply, as the opposing party would not be able to respond, this Court will allow a brief continuance to allow Plaintiff to respond to the arguments made in the reply papers.

The parties should be prepared to discuss the timing for Plaintiff to file its sur-reply and for a continued hearing date.