On 11/20/2017 ANCHOR GENERAL INSURANCE CO filed a Personal Injury - Motor Vehicle lawsuit against OCTAVIO MARIN-CRUZ. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is ELAINE LU. The case status is Disposed - Judgment Entered.
Disposed - Judgment Entered
Stanley Mosk Courthouse
Los Angeles, California
ANCHOR GENERAL INSURANCE CO.
PLEASANT JOSEPH M
10/1/2018: Declaration (name extension) - Declaration of Breanne L Reese, Esq. re: Publication
10/1/2018: Declaration (name extension) - Declaration of Shirlene Barnes re: Publication
10/24/2018: Order for Publication - Order for Publication
12/28/2018: Proof of Publication - Proof of Publication
2/6/2019: Request for Entry of Default / Judgment - Request for Entry of Default / Judgment
3/13/2019: Statement of the Case - Statement of the Case
3/13/2019: Request for Entry of Default / Judgment - Request for Entry of Default / Judgment
3/13/2019: Request for Dismissal - Request for Dismissal
3/13/2019: Declaration Pursuant to 585 CCP in Support of Default Judgment - Declaration Pursuant to 585 CCP in Support of Default Judgment
4/23/2019: Judgment - Judgment - Default Judgment By Court - Before Trial - 04/23/2019 entered for Plaintiff Anchor General Insurance Co. against Defendant Octavio Marin-Cruz.
6/12/2019: Proof of Service (not Summons and Complaint) - Proof of Service (not Summons and Complaint)
6/12/2019: Notice (name extension) - Notice OF ENTRY OF JUDGMENT
11/20/2017: Declaration (name extension) - Of Venue
11/20/2017: Summons - on Complaint
11/20/2017: Civil Case Cover Sheet
11/20/2017: Notice of Case Assignment - Limited Civil Case
DocketNotice OF ENTRY OF JUDGMENT; Filed by: Anchor General Insurance Co. (Plaintiff); As to: Octavio Marin-Cruz (Defendant)Read MoreRead Less
DocketProof of Service (not Summons and Complaint); Filed by: Anchor General Insurance Co. (Plaintiff); As to: Octavio Marin-Cruz (Defendant)Read MoreRead Less
DocketNon-Jury Trial scheduled for 05/20/2019 at 08:30 AM in Stanley Mosk Courthouse at Department 94 Not Held - Vacated by Court on 04/29/2019Read MoreRead Less
DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 11/23/2020 at 08:30 AM in Stanley Mosk Courthouse at Department 94 Not Held - Vacated by Court on 04/29/2019Read MoreRead Less
DocketJudgment - Default Judgment By Court - Before Trial - 04/23/2019 entered for Plaintiff Anchor General Insurance Co. against Defendant Octavio Marin-Cruz. Filed by: ClerkRead MoreRead Less
DocketDefault judgment by Court entered for Plaintiff Anchor General Insurance Co. against Defendant Octavio Marin-Cruz on the Complaint filed by Anchor General Insurance Co. on 11/20/2017 for damages of $11,055.60, interest of $924.32, and costs of $590.00 for a total of $12,569.92.Read MoreRead Less
DocketRequest for Entry of Default / Judgment; Filed by: Anchor General Insurance Co. (Plaintiff); As to: Octavio Marin-Cruz (Defendant)Read MoreRead Less
DocketRequest for Dismissal; Filed by: Anchor General Insurance Co. (Plaintiff); As to: Octavio Marin-Cruz (Defendant)Read MoreRead Less
DocketStatement of the Case; Filed by: Anchor General Insurance Co. (Plaintiff)Read MoreRead Less
DocketDeclaration Pursuant to 585 CCP in Support of Default Judgment; Filed by: Anchor General Insurance Co. (Plaintiff)Read MoreRead Less
DocketCase reassigned to Stanley Mosk Courthouse in Department 77Read MoreRead Less
DocketUpdated -- Summons on Complaint: Name Extension changed from on Complaint to on ComplaintRead MoreRead Less
DocketDeclaration Of Venue; Filed by: Anchor General Insurance Co. (Plaintiff)Read MoreRead Less
DocketComplaint; Filed by: Anchor General Insurance Co. (Plaintiff); As to: Octavio Marin-Cruz (Defendant)Read MoreRead Less
DocketCivil Case Cover Sheet; Filed by: Anchor General Insurance Co. (Plaintiff)Read MoreRead Less
DocketSummons on Complaint; Issued and Filed by: ClerkRead MoreRead Less
DocketNotice of Case Assignment - Limited Civil Case; Filed by: ClerkRead MoreRead Less
DocketCase assigned to Hon. Elaine Lu in Department 77 Stanley Mosk CourthouseRead MoreRead Less
DocketNon-Jury Trial scheduled for 05/20/2019 at 08:30 AM in Stanley Mosk Courthouse at Department 77Read MoreRead Less
DocketOrder to Show Cause - Failure to File Proof of Service scheduled for 11/23/2020 at 08:30 AM in Stanley Mosk Courthouse at Department 77Read MoreRead Less
Case Number: 17STLC04209 Hearing Date: February 05, 2020 Dept: 26
Anchor General Ins. Co. v. Marin-Cruz, et al
MOTION TO VACATE DEFAULT AND DEFAULT JUDGMENT
(CCP §§ 473(b), (d), 473.5; equity)
Defendant Octavio Marin-Cruz’s Motion to Set Aside Default and Default Judgment is CONTINUED TO APRIL 8, 2020 AT 10:30 AM.
On November 20, 2017, Plaintiff Anchor General Insurance Company (“Plaintiff”) brought this action for automobile subrogation against Defendant Octavio Marin-Cruz (“Defendant”). Because Defendant failed to answer the Complaint, Plaintiff successfully obtained default and default judgment against him in the amount of $12,569.92 on February 6, 2019 and April 23, 2019, respectively.
On September 26, 2019, Plaintiff filed an Acknowledgment of Partial Satisfaction of Judgment in the amount of $10,000.00. On December 10, 2019, Defendant filed the instant Motion to Vacate Default and Default Judgment (the “Motion”) under Code of Civil Procedure sections 473, subdivisions (b) and (d), section 473.5, and equitable grounds. Plaintiff filed an Opposition on January 24, 2020 and Defendant replied on January 29, 2020.
Code of Civil Procedure section 473(b)
Defendant first seeks relief from the default and default judgment pursuant to Code of Civil Procedure, section 473, subdivision (b). Under this statute, an application for relief must be made no more than six months after entry of the order from which relief is sought, and must be accompanied by an affidavit of fault attesting to the mistake, inadvertence, surprise or neglect of the moving party or its attorney. (Code Civ. Proc., § 473, subd. (b); English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 143.)
Here, the default judgment was entered on April 23, 2019 but the instant Motion was not filed until almost eight months later. The Court has no jurisdiction to grant relief beyond the express statutory deadlines. The request for relief is denied under Code of Civil Procedure section 473, subdivision (d).
Code of Civil Procedure section 473.5
The Motion is also brought under Code of Civil Procedure section 473.5, subdivision (a):
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.
(Code Civ. Proc., § 473.5, subd. (a).) The Motion must also “be accompanied by an affidavit showing under oath that the party's lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect.” (Code Civ. Proc., § 473.5, subd. (b).)
Notice of entry of default judgment was served on Defendant on June 11, 2019 by mail at 1838 West 50th Street, Los Angeles, California. (Proof of Service, filed 6/12/19.) The Motion provides no evidence that Defendant lacked notice of the action in time to provide a defense. (Motion, p. 5:26-6:2.) The Motion is supported only by the declaration of Jason M. Barmasse, who makes no statement regarding Defendant’s notice of the action. (Motion, Barmasse Decl.) Nor could Defendant’s attorney make such a statement without personal knowledge of the same. The Motion, therefore, also fails to show that it was brought within a reasonable time because no information is offered regarding when Defendant learned of the action. Third, the Motion is not accompanied by a delcaration showing lack of notice was not the result of Defendant’s avoidance of service or inexcusable neglect. Finally, the Motion is not accompanied by a “copy of the answer, motion, or other pleading proposed to be filed in the action” as required by Code of Civil Procedure section 473.5, subdivision (b).
As none of the requirements for relief have been met, the request to set aside the default and default judgment under Code of Civil Procedure section 473.5 is denied.
Code of Civil Procedure section 473(d)
Next, Defendant moves pursuant to Code of Civil Procedure section 473, subdivision (d) on the grounds that the judgment is void for lack of proper service. “‘[A] void at any time [Citation.]” (Rockefeller Technology Investments (Asia) VII v. Changzhou Sinotype Technology Co., Ltd. (2018) 233 Cal.Rptr.3d 814, 829.)
There is no showing that Defendant was not properly served in this action. On October 24, 2018, the Court granted Plaintiff’s application to serve the Summons and Complaint by publication. (Order for Publication, filed 10/24/18.) Proof of publication was filed on December 28, 2018. (Proof of Publication, filed 12/28/18.) The Motion offers no argument as to why the service by publication was improper. (Motion, p. 6:3-16.) Its contention that Defendant was not personally served has no bearing on the propriety of other methods of service.
Defendant also moves for equitable relief from the entry of default and default judgment. “[A] trial court may ... vacate a default on equitable grounds even if statutory relief is unavailable. [Citation.]” (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981.) “ ‘To set aside a judgment based upon extrinsic mistake one must satisfy three elements. First, the defaulted party must demonstrate that it has a meritorious case. Second[ ], the party seeking to set aside the default must articulate a satisfactory excuse for not presenting a defense to the original action. Last[ ], the moving party must demonstrate diligence in seeking to set aside the default once ... discovered.’ [Citation.]” (Id. at 982.)
Again, none of these requirements are satsified. Defendant does not indicate the basis of his defense, if any. Nor does Defendant demonstrate why he failed to defend the action orginally. As discussed above, there is no showing of improper service or lack of actual notice. Also, as discussed above, Defendant has not demonstrated diligence in the timing of this Motion.
Therefore, the Court finds that there is no basis for equitable relief from the default and default judgment.
Defendant’s final argument is that his insurer, Access General, was liquidated on March 13, 2018, at which time the California Department of Insurance became the administrator for the defense of claims related to Access General. (Motion, Barmasse Decl., ¶8 and Exh. E.) In his moving papers, Defendant argues that under Cal. Insurance Code section 1063.2, subdivision (g), a default judgment shall not be issued against the insured of an insolvent insurer. Plaintiff responds to this argument by pointing to the language of Cal. Insurance Code section 1063.1, subdivision (c)(1) and (5). Plaintiff argues that under these subdivisions, even if the amount covered by Access General’s insurance policy, $10,000.00 in this case, cannot be pursued against Defendant, he is still liable for the unpaid portion of the collision coverage damages in the amount of $2,562.92.
On reply, Defendant drops the argument made pursuant to Insurance Code section 1063.2, subdivision (g) in favor or an argument based on Insurance Code section 1063.2, subdivision (c)(2). The Court finds this new argument on reply to be improper.
[The Court] will not ordinarily consider issues raised for the first time in a reply brief. (Kovacevic v. Avalon at Eagles' Crossing Homeowners Assn. (2010) 189 Cal.App.4th 677, 680, fn. 2, 117 Cal.Rptr.3d 53.) An issue is new if it does more than elaborate on issues raised in the opening brief or rebut arguments made by the respondent in respondent's brief. Fairness militates against allowing an appellant to raise an issue for the first time in a reply brief because consideration of the issue deprives the respondent of the opportunity to counter the appellant by raising opposing arguments about the new issue.
(American Indian Model Schools v. Oakland Unified School Dist. (2014) 227 Cal.App.4th 258, 276 (citing Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764).) Here, Plaintiff (and the Court) was given not given any notice that Defendant would make an argument pursuant to subdivision (c) of section 1063.2 of the Insurance Code. This new argument on reply must either be struck or require a continuance of the hearing to give Plaintiff an opportunity to respond.
There are several other issues to consider with respect to the resolution of this Motion. First, a partial satisfaction of judgment was filed on September 26, 2019, but it is unclear who paid that amount. Did Plaintiff, having been notified in July 2019 that this action was subject to the above-cited provisions of the Insurance Code, file the partial satisfaction of judgment because it had to cover that amount itself? Second, Plaintiff has apparently been in conversation with Defendant’s wife to reach a settlement regarding the remaining part of the judgment. (Opp., Creasey Decl., ¶¶22.) A settlement was reached between Plaintiff and Defendant between September and October 2019, and payments have been made monthly thereon. (Id. at ¶¶24-29.) In fact, three payments have been made after the instant Motion was filed, with the latest payment being made on January 16, 2020. (Id. at ¶¶27-29.) So, while Defendant was in the process of paying off the remainder of the default judgment, this Motion was purportedly made on his behalf. Defendant’s reply does not address these contradictory positions.
In light of the Defendant Octavio Marin-Cruz’s Motion to Set Aside Default and Default Judgment is CONTINUED TO APRIL 8, 2020 AT 10:30 AM. BOTH PARTIES ARE TO CONCURRENTLY FILE AND PERSONALLY SERVE SUPPLEMENTAL BRIEFING ON MARCH 11, 2020. THE SUPLEMENTAL BRIERS ARE NOT TO EXCEED FIVE (5) PAGES AND MUST ADDRESS EACH OF THE ISSUES NOTED ABOVE. THE PARTIES ARE STRONGLY ENCOURAGED TO DISCUSS THESE ISSUES PRIOR TO FILING THEIR BRIEFS IN ORDER TO REACH AN INFORMAL RESOLUTION OF THIS ACTION.
Moving party to give notice.