Judge: Steven A. Ellis, Case: 22STCV38577, Date: 2024-10-25 Tentative Ruling
Case Number: 22STCV38577 Hearing Date: October 25, 2024 Dept: 29
Guzman v. State of California
22STCV38577
Motion to Set Aside Default filed by Cross-Defendants
Metro Investments Group, Inc. and Apex Development, Inc.
Tentative
The motion is granted.
Background
On December 12, 2022, Victor Hernandez Guzman
(“Plaintiff”) filed a complaint against State of California, Metro Investments
Group, Inc. (“Metro”), and Does 1 through 50, asserting causes of action for (1)
negligence pursuant to Government Code sections 815.2, 815.4, 815.6, and 820,
(2) dangerous condition of public property pursuant to Government Code sections
835 and 840.2, (3) negligence, and (4) premises liability, all arising out of an
alleged trip and fall on March 17, 2022 at or near a parking lot located at 1622
S. Hooper Avenue in Los Angeles.
On March 11, 2024, the People of the State of
California, acting by and through the Department of Transportation (erroneously
sued as State of California) (“Caltrans”) filed an answer. On the same day, Caltrans filed a cross-complaint
against Anthony Nowaid (“Nowaid”), Apex Development, Inc. (“Apex”), Metro, and
Roes 1 through 50.
On June 18,
2024, defaults were entered on the cross-complaint against Nowaid, Apex, and
Metro.
Notwithstanding
the default, on July 25, 2024, Metro filed an answer to the cross-complaint.
On August 7,
2024, Plaintiff amended the complaint to name Apex as Doe 1.
On September 30,
2024, Metro and Apex filed this motion to set aside the defaults entered
against them on the cross-complaint. Caltrans filed an opposition on
October 2, and Metro and Apex filed a reply on October 18.
Legal Standard
Code of Civil Procedure section 473,
subdivision (b) provides for both discretionary and mandatory relief from
dismissal.
As to discretionary relief, the statute
states: “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 through his or her mistake, inadvertence,
surprise, or excusable neglect.” (Code of Civil Procedure § 473,
subd. (b).) Where such an application for discretionary relief is made, the
motion must be accompanied by a copy of the answer or pleading proposed to be
filed; “otherwise the application shall not be granted.” (Ibid.)
The statute also provides for mandatory
relief from dismissal, default, or default judgment:
“whenever an application for relief is made
no more than six months after entry of judgment, is in proper form, and is
accompanied by an attorney’s sworn affidavit attesting to his or her mistake,
inadvertence, surprise, or neglect … unless the court finds that the default or
dismissal was not in fact caused by the attorney’s mistake, inadvertence,
surprise, or neglect.”
(Ibid.)
A request for discretionary relief under
section 473, subdivision (b), must be made (subject to certain exceptions)
“within a reasonable time, in no case exceeding six months.” (Ibid.) A
request for mandatory relief must be made within six months. (Ibid.)
Subdivision (d) of section 473 provides, “The
court … may, on motion of either party after notice to the other party, set
aside any void judgment or order.” (Code of Civ. Proc., § 473, subd. (d).)
Discussion
Metro and Apex seek to set aside the defaults entered
against them. They argue that the
defaults were the result of attorney error (with relief available under Code of
Civil Procedure section 473, subdivision (b)), and they also argue that the
defaults are void (with relief available under section 473, subdivision (d)).
Beginning with the second argument of Metro and Apex, the
Court finds that the defaults entered against them are void. Code of Civil Procedure section 425.11,
subdivision (c), plainly requires that “the plaintiff shall serve the statement
[of damages] on the defendant before a default may be taken.” (See also Hamm v. Elkin (1987) 196
Cal.App.3d 1343, 1346;
1 Weil & Brown, California Practice Guide: Civil
Procedure Before Trial (2024), ¶ 5:82.) That
did not occur here. (Norton Decl., ¶
14.)
Caltrans argues that this rule does not apply to a
cross-complaint and a cross-complainant, but there is no reason that a default as
to a cross-complaint should be treated any differently than a default as to a
complaint. Before a default is entered,
the party against whom default is sought – whether that party is a defendant or
a cross-defendant -- is entitled to know not only the legal and factual basis
for the causes of action asserted against it but also the nature and amount of
relief sought. The only case cited by
the parties, Schwab v. Southern California Gas Co. (2004) 134
Cal.App.4th 1308, describes the issue as “unsettled” but required, at a
minimum, some formal notice to the party “of the nature and amount of damages
sought” before a default could validly be entered. (134 Cal.App.4th at pp. 1323-1324.)
Caltrans also argues that it was impossible for it to
serve a statement of damages on Metro and Apex in May or June 2024 because it
did not yet now what damages Plaintiff was seeking, and did not obtain that
information until Plaintiff served a statement of damages on Caltrans in
September 4, 2024. But that is precisely
the point. In May and June 2024, no one
knew the amount of damages that Plaintiff was seeking – not Caltrans, not
Metro, and not Apex. Absent service of
the statement of damages (or, perhaps, some other formal notice), it was
premature for Caltrans to seek entry of the default of Metro and Apex.
Accordingly, the motion is granted on the ground that the
defaults entered against Metro and Apex were void. The Court need not reach, and does not reach,
the other arguments made by Metro and Apex.
Conclusion
The Court GRANTS the motion of Cross-Defendants Metro Investments
Group, Inc. and Apex Development, Inc. to set aside the entries of defaults.
The Court SETS ASIDE the default entered on June 18,
2024, as against Metro Investments Group, Inc.
The Court SETS ASIDE the default entered on June 18,
2024, as against Apex Development, Inc.
The answer to the cross-complaint filed by Metro
Investments Group, Inc., on July 25, 2024, shall remain on file.
The COURT GRANTS LEAVE to Apex Development, Inc., to file
the proposed Answer attached to the moving papers within seven days of the
hearing date.
Moving Parties are ordered to give notice.