Judge: William A. Crowfoot, Case: 20STCV24031, Date: 2022-12-13 Tentative Ruling

Case Number: 20STCV24031    Hearing Date: December 13, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

On June 25, 2020, plaintiff Deborah Jackson (“Plaintiff”) filed this action against defendants Joseph Ward (“Defendant”) and Budget Car Rental, LLC arising from a June 26, 2019 motor vehicle collision.  Plaintiff personally served Defendant with the summons and complaint on February 18, 2021 and a statement of damages on October 1, 2021.  On July 14, 2022, the clerk entered default against Defendant.

On July 29, 2022, Plaintiff filed a proposed judgment and declaration pursuant to CCP 585 in support of an application for default judgment.

On November 2, 2022, Plaintiff filed a “Motion re: Court Judgment on Default.”  On November 7, 2022, Defendant filed this motion to set aside the entry of default. 

The court has broad discretion to vacate the entry of default, default judgment, or a dismissal where the moving party timely establishes a proper ground for relief.  (Cruz v. Fagor America, Inc. (2007) 146 Cal.App.4th 488, 495.)  Code of Civil Procedure, section 473, subdivision (b) contains a mandatory provision that covers only dismissals, default judgments, and defaults that will result in entry of judgments.  It provides: “[T]he 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).)

The general underlying purpose of Section 473, subdivision (b) is to promote the determination of actions on their merits.  (Even Zohar Const. & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 838-839.) 

Where a party moves for mandatory relief under section 473, the six-month deadline runs from the entry of default judgment.  (See Sugasawara v. Newland (1994) 27 Cal.App.4^th 294, 296-297 [finding that the six-month deadline to apply for relief based on attorney neglect runs from the entry of default judgment and that the order granting relief sets aside the default and the default judgment].)

          Defendant moves for an order setting aside the default on the grounds that defense counsel failed to file a responsive pleading due to mistake, inadvertence, surprise, and/or neglect.  Defendant also moves for discretionary relief. 

          Stuart J. Liebman declares that on October 15, 2021, he was assigned to represent Defendant in the instant matter and instructed to file a responsive pleading on his behalf.  (Liebman Decl., ¶ 3.)  Mr. Liebman states he sent letters to Defendant on January 31 and June 29, 2022, but received no reply.  (Liebman Decl., ¶¶ 5-6.)  One of the letters requested permission to appear on Defendant’s behalf.  (Liebman Decl., ¶ 7.)  He states he did not file a responsive pleading due to mistake, inadvertence, surprise, or neglect.  (Liebman Decl., ¶ 10.) 

The Court exercises its discretion to consider the untimely opposition brief filed by Plaintiff.  Plaintiff argues that Defendant’s failure to respond to Mr. Liebman shows that Mr. Liebman does not represent Defendant, and therefore, whether the default is due to his mistake, inadvertence, surprise, or neglect is irrelevant.  The Court agrees. 

An insurer may intervene in third party actions and file a motion to set aside a default judgment where the insurer remains liable for any default judgment against the insured and it has no means other than intervention to litigate liability or damage issues.  (Reliance Ins. Co. v. Superior Court (2000) 84 Cal.App.4th 383, 387.)  Here, however, the motion is made in Defendant’s name, although it is unclear whether Defendant has ever consented to representation by an attorney and where Defendant’s whereabouts are unknown to his purported attorney. 

Accordingly, Defendant’s motion is DENIED. 

Plaintiff’s “motion” is an application for default judgment against Defendant in the sum of $104,799.68, consisting of $34,195.97 in special damages, $70,000 in general damages, and $603.71 in costs.  However, the application is defective because Budget Car Rental LLC and Doe 1 through Doe 20 have not yet been dismissed and there is no explanation providing a basis for a several judgment.

Accordingly, Plaintiff’s application for default judgment is DENIED. 

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’s 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.