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

Case Number: 20STCV24031    Hearing Date: December 20, 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.  This order addresses both motions. 

Defendant’s Motion to Set Aside 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.)  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.) 

Code of Civil Procedure section 473 provides: “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 of Civil Procedure, section 473, subdivision (b) also contains a mandatory provision that covers 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).) 

          On November 7, 2022, Defendant filed this motion for an order setting aside the default on the grounds that prior defense counsel failed to file a responsive pleading due to mistake, inadvertence, surprise, and/or neglect. 

          At the hearing on this motion on December 13, 2022, the Court continued the hearing and allowed Defendant to file a declaration in support of this motion.  The declaration was also filed on December 13, 2022. 

          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.) 

In the Declaration of Joseph Ward in Support of Motion to Set Aside Entry of Default, Defendant declares that between January 2022 and June 2022, he resided at multiple addresses while seeking employment, and was unaware of any letters, emails, or phone calls from Mr. Liebman regarding this matter, and was unaware that Mr. Liebman intended or sought to represent him in this matter.  (Ward Decl., ¶¶ 3-5.)  Defendant further declares that had he been aware that Mr. Liebman intended or sought to represent him in this matter, he would have consented to such representation, and now consents to allow Michael S Johnson, of Macdonald & Cody, LLP to represent him in this matter and file an answer on his behalf.  (Ward Decl., ¶¶ 6-7.) 

The Court notes that the policy is to liberally grant relief so that cases may be resolved on their merits. (See Olvera v. Olvera (1991) 232 Cal.App.3d 32, 39.)  It is well established that trial courts should be liberal in granting relief under section 473.  (See Kisling v. Otani (1962) 201 Cal.App.2d 62, 66; Brown v. Martin (1914) 23 Cal.App. 736, 739.)  This is because the law favors resolution of cases on the merits.  (See Jones v. Lindsey (1952) 114 Cal.App.2d 237, 239; Brown, supra, 23 Cal.App. at 739.)  “Even in a case where the showing under section 473 is not strong, or where there is any doubt as to the setting aside of a default, such doubt should be resolved in favor of the application [of section 473 relief.]”  (Arnke v. Lazzari Fuel Co. (1962) 202 Cal.App.2d 278, 281.)

Given the circumstances surrounding Mr. Liebman’s inadvertent failure to file an answer on behalf of Defendant and inability to contact Defendant, the Court exercises its discretion to grant relief and vacate the entry of default. 

Accordingly, Defendant’s motion is GRANTED.  Defendant is ordered to file his responsive pleading within 10 days of the date of this order.  

Plaintiff’s Motion re: Court Judgment

As the Court vacates the entry of default against Defendant, Plaintiff’s motion for a court judgment is denied as moot. 

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.