Judge: William A. Crowfoot, Case: 19STCV29663, Date: 2022-08-24 Tentative Ruling


Case Number: 19STCV29663    Hearing Date: August 24, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

 

INTERINSURANCE EXCHANGE OF THE AUTOMOBILE CLUB,

                   Plaintiff(s),

          vs.

 

SHANEE MONIQUE CLEMENTE, et al.,

 

                   Defendant(s).

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      CASE NO.: 19STCV29663

 

[TENTATIVE] ORDER RE: PLAINTIFF’S MOTION TO SET ASIDE DEFAULT AND DEFAULT JUDGMENT

 

 

Dept. 27

1:30 p.m.

August 24, 2022

 

I.            INTRODUCTION

On August 21, 2019, Plaintiff Interinsurance Exchange of the Automobile Club (“Plaintiff”) filed this action against Defendant Shanee Monique Clemente (“Defendant”) for subrogation.

On December 11, 2019, default was entered against Defendant.

On May 5, 2021, the Court granted Plaintiff’s application for default judgment and entered default judgment in favor of Plaintiff and against Defendant in the amount of $21,076.53.

On June 20, 2022, Plaintiff filed this motion to set aside default and default judgment.  No opposition has been filed.

II.          DISCUSSION

Plaintiff seeks a court order setting aside the default entered against Defendant on December 11, 2019 and the default judgment entered against Defendant on May 5, 2021 pursuant to CCP sections 187 and 473.

Code of Civil Procedure section 473 provides that “the court shall, 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, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.”  (Code Civ. Proc., § 473, subd. (b).)

CCP section 473(b) requires an application for relief to be made no more than six months after entry of default judgment.  Default judgment was entered against Defendant on May 5, 2021.  As this motion was not filed until June 20, 2022, more than one year after default judgment was entered, the motion is untimely.

Even if the motion were timely, the Court finds Plaintiff would not be entitled to relief pursuant to CCP section 473(b) based on prior counsel’s mistake, inadvertence, surprise and/or excusable neglect.  CCP section 473(b) authorizes the Court to set aside a default judgment taken against the attorney’s client.  Here, Plaintiff is seeking relief from the default judgment taken against Defendant, not Plaintiff itself.  As the default judgment was not taken against Plaintiff, Plaintiff is not entitled to relief pursuant to CCP section 473(b).

Plaintiff is also not entitled to relief pursuant to CCP section 473(d) as Plaintiff is not seeking to correct a clerical mistake and has made no showing that the default judgment is void.

While Plaintiff is not entitled to relief pursuant to CCP section 473, the Court finds Plaintiff is entitled to relief pursuant to CCP sections 128 and 187.

CCP section 128(a)(8) provides the court with discretion “[t]o amend and control its process and orders so as to make them conform to law and justice.”  (Code Civ. Proc., § 128, subd. (a)(8).)  CCP section 187 provides that “[w]hen jurisdiction is, by the Constitution or this Code, or by any other statute, conferred on a Court or judicial officer, all the means necessary to carry it into effect are also given; and in the exercise of this jurisdiction, if the course of proceeding be not specifically pointed out by this Code or the statute, any suitable process or mode of proceeding may be adopted which may appear most conformable to the spirit of this Code.”  (Code Civ. Proc., § 187.)

Here, Plaintiff’s counsel provides that the complaint was filed and default and default judgment were entered against Defendant due to prior counsel’s mistaken belief that Defendant was the registered owner of the vehicle involved in the May 13, 2018 accident.  (Motion, Bailey Decl., ¶¶ 4-5.)  Counsel was recently informed that Defendant was not the registered owner of the vehicle involved in the accident.  (Id., ¶ 6.)  Counsel declares the complaint, request for entry of default and request for entry of default judgment should have never been filed against Defendant.  (Id., ¶ 7.)

Given Defendant is not the registered owner of the vehicle involved in the accident giving rise to this action and should not have been named in this action in the first place, the Court finds it would be in furtherance of justice to set aside the default and default judgment entered against Defendant.  Plaintiff is thus entitled to relief setting aside the default and default judgment entered against Defendant pursuant to CCP sections 128(a)(8) and 187.

VI.     CONCLUSION

          In light of the foregoing, the motion to set aside default and default judgment is GRANTED.

Moving party to give notice. 

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that 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 matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.