Judge: Steven A. Ellis, Case: 21STCV16871, Date: 2025-01-09 Tentative Ruling
DEPARTMENT 29 - LAW AND MOTION RULINGS IMPORTANT (PLEASE SEND YOUR E-MAIL TO DEPT. 29 NOT DEPT. 2)
Communicating with the Court Staff re the Tentative Ruling 1. Please notify the courtroom staff by email not later than 9:30 a.m. on the day of the hearing if you wish to submit on the tentative ruling rather than argue the motion. The email address is SSCDEPT29@lacourt.org. Please do not use any other email address. 2. You must include the other parties on the email by "cc." 3. Include the word "SUBMISSION" in all caps in the Subject line and include your name, contact information, the case number, and the party you represent in the body of the email. If you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the motions. THE COURT WILL HEAR ARGUMENT UNLESS BOTH SIDES SUBMIT ON THE TENTATIVE. 4. Include the words "SUBMISSION BUT WILL APPEAR" if you submit, but one or both parties will nevertheless appear. 5. For other communications with Court Staff a. OFF-CALENDAR should appear in all caps in the Subject line where all parties have agreed to have a matter placed off-calendar. All counsel should be cc'ed (and where appropriate parties not represented by counsel) and the body of the email should state: (a) name and case number; (b) date of proceeding. b. CASE SETTLED should appear in all caps in the Subject line where all parties have agreed that the case has settled for all purposes. All counsel should be cc'ed (and where appropriate parties not represented by counsel) and the body of the email should state: (a) name and case number; (b) whether notice of settlement/dismissal documents have been filed; (c) if (b) has not been done, a date one year from the date of your email which will be a date set by the court for an OSC for dismissal of the case. c. STIPULATION should appear in all caps in the Subject line where all parties have stipulated that a matter before the court can be postponed. All counsel should be cc'ed (and where appropriate parties not represented by counsel) and the body of the email should state: (a) name and case number; (b) what proceeding is agreed to be postponed e.g. Trial, FSC; (c) the agreed-upon future date; (d) whether all parties waive notice if the Court informs all counsel/parties that the agreed-upon date is satisfactory. This communication should be used only for matters that are agreed to be postponed and not for orders shortening time. 6. PLEASE MAKE SURE THAT ALL COMMUNICATIONS WITH COURT STAFF DEAL ONLY WITH SCHEDULING AND ADMINISTRATIVE MATTERS AND DO NOT DISCUSS THE MERITS OF ANY CASE. (UPDATED 6/17/2020)
IMPORTANT: In light of the COVID-19 emergency, the Court encourages all parties to appear remotely. The capacity in the courtroom is extremely limited. The Court appreciates the cooperation of counsel and the litigants.
ALSO NOTE: If the moving party does not contact the court to submit on the tentative and does not appear (either remotely or in person), the motion will be taken off calendar. THE TENTATIVE RULING WILL NOT BE THE ORDER OF THE COURT.
Case Number: 21STCV16871 Hearing Date: January 9, 2025 Dept: 29
Cruz v. Escobar
21STCV16871
Motion to Set Aside Default filed by Cross-Defendant Anthony Cruz.
Tentative
The motion is granted.
Background
On May 5, 2021, Anthony Cruz (“Cruz”) and
Oscar Cruz Arreola filed a complaint against Mario Almada Escobar, All Ways
Electric, Inc. (collectively “Defendants”), and Does 1 through 50, asserting
causes of action for motor vehicle negligence and general negligence arising
out an automobile accident occurring on January 17, 2020.
On August 6, 2021, Defendants filed an answer
to the complaint.
On the same day, August 6, 2021, Defendants
filed a cross-complaint against Cruz.
On December 22, 2022, the Court entered the
default of Cruz on the cross-complaint.
Notwithstanding the entry of default, on
December 29, 2022, Cruz filed an answer to the cross-complaint.
On January 4, 2023, Defendants provided
notice of the entry of default on the cross-complaint.
On December 22, 2022, default was entered
against Cruz. On December 29, 2022, Cruz filed a general denial to the
cross-complaint.
On December 9, 2024,
Cruz filed this motion to set aside the default.
No opposition
has been filed.
Legal Standard
Code of Civil Procedure section 473.5, subdivision (a),
provides:
“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.”
Discussion
Cruz seeks relief from the entry of default under Code of
Civil Procedure sections 473.5 arguing that he was not aware of the default.
A default has been entered against Cruz on the
cross-complaint. But Cruz also filed an
answer to the cross-complaint, and the parties have apparently been conducting
discovery and otherwise litigating based on the assumption that Cruz was not in
default. Indeed, in April 2024, the
parties submitted a stipulation to continue trial that was signed by counsel
for Cruz as plaintiff and then, separately, by counsel for Cruz as cross-defendant.
Under the unusual circumstances of the case, and taking
into account that Cruz did file an answer to the cross-complaint more than two years
ago (after his default was taken but before notice of the default was given),
as well as the strong public policy in favor of resolution of disputes on the
merits, the Court grants the motion.
Conclusion
The Court GRANTS the motion of Cross-Defendant Cruz to
set aside the entry of default.
The Court SETS ASIDE the default entered on December 22,
2022, against Anthony Cruz on the cross-complaint.
The Answer to the cross-complaint filed by Anthony Cruz
on December 29, 2022, remains on file.
Moving Party is to give notice.