Judge Salvatore Sirna, Case Number: 24PSCV01375, Date: 2024-08-20 Tentative Ruling

Judge: Salvatore Sirna, Case: 24PSCV01375, Date: 2024-08-20 Tentative Ruling

Case Number: 24PSCV01375 Hearing Date: August 20, 2024 Dept: G

Defendant Penske Truck Leasing Co., L.P.’s Motion to Set Aside Request for Entry of Default and Request for Sanctions against Plaintiffs

Respondent: Plaintiffs Linda Hernandez, Henry Hernandez, and David Hinojos

TENTATIVE RULING

Defendant Penske Truck Leasing Co., L.P.’s Motion to Set Aside Request for Entry of Default is GRANTED and Defendant Penske Truck Leasing Co., L.P.’s Answer filed July 9, 2024, is deemed accepted and timely filed as of this date.

BACKGROUND

On April 30, 2024, Plaintiffs Linda Hernandez, Henry Hernandez, and David Hinojos filed a complaint against Defendants Elvira Arellano; Gabriel Arellano; Ramiro Gutierrez, Jr; Mediwaste Disposal, LLC (Mediwaste); Penske Truck Leasing Co., L.P. (Penske), erroneously sued as Penske Truck Leasing Corporation; and Does 1-50, alleging the following causes of action: (1) motor vehicle negligence, (2) negligence, (3) negligent infliction of emotional distress (NIED), and (4) loss of consortium. On May 3, 2024, Plaintiffs’ process server personally served Penske in Sacramento.

On June 17, 2024, the Arellanos filed a cross-complaint against Gutierrez, Mediwaste, Penske, and Roes 1-50, alleging the following causes of action: (1) equitable indemnity, (2) apportionment of fault, and (3) declaratory relief.

On June 18, 2024, Mediwaste and Gutierrez filed a cross-complaint against the Arellanos and Roes 1-10, alleging the following causes of action: (1) implied indemnity, (2) contribution, (3) equitable indemnity, (4) apportionment of fault, and (5) declaratory relief.

On July 8, 2024, the court entered default against Penske after Penske failed to timely file an answer. After Penske belatedly filed an answer on July 9, 2024, Penske filed the present motion on July 25, 2024.

On August 9, 2024, Mediwaste, Gutierrez, and Penske filed a motion for a protective order.

A hearing on the present motion is set for August 20, 2024, with a hearing on the protective order set for September 11, 2024. A case management conference and OSC Re: Failure to File Proof of Service are set for September 26, 2024.

ANALYSIS

Penske moves to set aside the entry of default against Penske on the grounds that Plaintiffs have acted in bad faith. For the following reasons, the court GRANTS the motion.

Legal Standard

Whenever an application for relief from default judgment is made no more than six months after entry of judgment, is in proper form, and is accompanied by the moving party’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or excusable neglect, the court may vacate any (1) resulting default entered by the clerk against the moving party or (2) resulting default judgment or dismissal entered against the moving party, unless the court finds that the default or dismissal was not in fact caused by the moving party’s mistake, inadvertence, surprise, or excusable neglect. (Code Civ. Proc., §473, subd. (b).) “The six-month time limit for granting statutory relief is jurisdictional and the court may not consider a motion for relief made after that period has elapsed.” (Manson, Iver & York v. Black (2009) 176 Cal.App.4th 36, 42 (Manson).) That “six-month period runs from entry of default, not entry of judgment.” (Id.)

Courts liberally grant motions to vacate default judgments when relief is promptly sought and the opposing party is not prejudiced as the law strongly favors resolution on the merits. (Kramer v. Traditional Escrow, Inc. (2020) 56 Cal.App.5th 13, 28.) Courts only require “slight evidence” to support vacating a default and resolve all doubts in favor of the party seeking relief. (Ibid.) However, “[t]he only occasion for the application of section 473 is where a party is unexpectedly placed in a situation to his injury without fault or negligence of his own and against which ordinary prudence could not have guarded.” (Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1206, quoting Elms v. Elms (1946) 72 Cal.App.2d 508, 513.)

Furthermore, it is well established that “an attorney has an ethical obligation to warn opposing counsel that the attorney is about to take an adversary's default” and provide opposing counsel with a reasonable time to file the required pleading. (Lasalle v. Vogel (2019) 36 Cal.App.5th 127, 135.) While the absence of such notice does not provide mandatory grounds for the court to vacate default, the court nonetheless retains the discretion to do so if these ethical obligations are not met. (See Bellm v. Bellia (1984) 150 Cal.App.3d 1036, 1038.)

Discussion

Here, Penske’s motion is timely as it was filed less than a month after the court’s entry of default. In support of Penske’s motion, Penske’s counsel provided a declaration stating Plaintiffs’ counsel failed to provide any notice of Plaintiffs’ intent to seek the entry of default against Penske despite being made aware of Penske’s representation by counsel as early as June 14, 2024. (Sarabekian Decl., ¶ 3, 9, Ex. A.) In response, Plaintiffs provide a copy of a letter dated June 15, 2024, and addressed to Penske through Penske’s agent for service of process. (Zurita-Cruz Decl., Ex. 2.) In the letter, Plaintiffs’ counsel state they will seek an entry of default against Penske if an answer is not filed by July 1, 2024. (Opp., Ex. 2.)

But on June 14, 2024, Penske’s counsel emailed Plaintiffs’ counsel at “eservice@cz.law” to inform them that Penske was represented by counsel. (Sarabekian Decl., ¶ 3, Ex. A.) Plaintiffs’ counsel never explicitly denied receiving this email in their declaration. Instead, counsel appears to suggest that Penske’s counsel had utilized the wrong email address. (Zurita-Cruz Decl., ¶ 10.) This argument fails as the email address used by Penske’s counsel was the email address Plaintiffs’ counsel had listed on the Complaint. Because Plaintiffs’ counsel was aware of the fact that Penske was represented by counsel on June 14, 2024, they should have served notice of their intent to seek default directly on counsel. By failing to do so, they have given this court grounds to vacate the entry of default against Penske.

Last, to the extent Penske seeks sanctions in their motion pursuant to Code of Civil Procedure section 128.5, the court declines to award any as such sanctions must be requested in a separately noticed motion. (Code Civ. Proc., § 128.5, subd. (f)(1)(A).)

Accordingly, Penske’s motion is GRANTED.

CONCLUSION

Based on the foregoing, Penske’s motion to set aside the entry of default against Penske is GRANTED and Penske’s Answer filed July 9, 2024, is deemed accepted and timely filed as of this date.