Judge: Steven A. Ellis, Case: 21STCV05456, Date: 2024-02-02 Tentative Ruling

Case Number: 21STCV05456    Hearing Date: February 29, 2024    Dept: 29

Motion to
Set Aside Default and Default Judgment filed by Defendant City of Los Angeles.

Tentative

The motion is denied without prejudice.  (Note: this is a change from the tentative
ruling previously posted on this motion.)

Background

On February 10, 2021, Douglas Castellanos and Julian Holloman
(collectively “Plaintiffs”) filed a complaint against City of Los Angeles and
Does 1 through 20 for general gegligence and premises liability arising out of a
motor vehicle accident that allegedly occurred on February 10, 2019.  Plaintiffs are representing themselves in pro
per.

On October 4, 2022, the Court granted Plaintiffs’ request to
correct the complaint to name City of Vernon as a defendant in place of City of
Los Angeles.  But on April 19, 2023, Plaintiffs brought City of Los
Angeles back into the case, naming the City of Los Angeles as Doe 2.

On October 5, 2023, Plaintiffs filed a proof of service showing
personal service of the summons and complaint on an authorized agent of City of
Los Angeles in June 2023.  Also on October 5, 2023, a default was
entered against City of Los Angeles (“Defendant”).

On January 5, 2024, Defendant filed this motion to set aside
default and default judgment.  Plaintiffs
were served with the motion electronically.

No opposition has been filed.

The motion was initially set for hearing on February 2.  The Court continued the hearing to February
29, 2024.

Legal Standard

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.”

“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…” (Code Civ. Pro., §473, subd. (b).)

To qualify for relief under section 473, the moving party
must act diligently in seeking relief and must submit affidavits or testimony
demonstrating a reasonable cause for the default. (Elston v. City of
Turlock (1985) 38 Cal.3d 227, 234.)

“In a motion under section 473 the initial burden is on the moving
party to prove excusable neglect by a “preponderance of the evidence.
[Citations]”” (Kendall v. Barker (1988) 197 Cal.App.3d 619, 624.)
“The moving party has a double burden: He must show a satisfactory excuse for
his default, and he must show diligence in making the motion after discovery of
the default.” (Id. at 625.)

Discussion

Defendant
requests default entered against it be set aside under Code of Civil Procedure
sections 473.5 and 473(b).

There
appears to be a sufficient substantive basis to grant Defendant relief under Code
of Civil Procedure section 473(b).  Defendant’s counsel has shown, by
counsel’s declaration, that Defendant’s failure to respond to the complaint,
and the subsequent entry of default, was the result of counsel’s mistake.  Moreover,
once counsel realized the mistake, Defendant acted promptly in making this
motion.

There is,
however, a procedural defect with Defendant’s motion.  Defendant served Plaintiffs by electronic service
only.  Plaintiffs
are representing themselves in pro per.  Pro
per parties are not subject to mandatory electronic service requirements.  Under Code of Civil Procedure section 1010.6,
subdivision (c), an unrepresented party may consent to electronic service, but
nothing has been filed with the Court or presented to the Court that indicates
that both Plaintiffs have consented to electronic service.

Accordingly, the Court must deny Defendant’s motion without
prejudice.

Conclusion

The Court DENIES Defendant’s Motion without
prejudice.

Moving Party is to give notice.