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This case was last updated from Los Angeles County Superior Courts on 04/09/2021 at 01:41:20 (UTC).

ENRIQUE BENAVIDEZ VS TOWER INSURANCE COMPANY OF NEW YORK, A NEW YORK CORPORATION, ET AL.

Case Summary

On 01/31/2019 ENRIQUE BENAVIDEZ filed a Contract - Other Contract lawsuit against TOWER INSURANCE COMPANY OF NEW YORK, A NEW YORK CORPORATION. This case was filed in Los Angeles County Superior Courts, Spring Street Courthouse located in Los Angeles, California. The Judge overseeing this case is JAMES E. BLANCARTE. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******1109

  • Filing Date:

    01/31/2019

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Spring Street Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Judge

JAMES E. BLANCARTE

 

Party Details

Plaintiff

BENAVIDEZ ENRIQUE

Defendants

TOWER INSURANCE COMPANY OF NEW YORK DBA TOWER SELECT INSURANCE COMPANY A NEW YORK CORPORATION

VALE MOTORS INC. DBA VALE AUTO SALES A CALIFORNIA CORPORATION

VALE MOTORS INC.

ARTICLE ACCEPTANCE COMPANY

TOWER INSURANCE COMPANY OF NEW YORK

Attorney/Law Firm Details

Plaintiff Attorney

STONES JASON

Defendant Attorney

ELDER WILLIAM NORMAN

 

Court Documents

Reply (name extension) - Reply in Further Support of Motion to Set Aside Entry of Default

3/30/2021: Reply (name extension) - Reply in Further Support of Motion to Set Aside Entry of Default

Minute Order - Minute Order (Hearing on Motion to Set Aside/Vacate Default (CCP 473.5))

4/7/2021: Minute Order - Minute Order (Hearing on Motion to Set Aside/Vacate Default (CCP 473.5))

Declaration (name extension) - Declaration of Melissa Galicia ISO Motion to Set Aside Entry of Default

3/12/2021: Declaration (name extension) - Declaration of Melissa Galicia ISO Motion to Set Aside Entry of Default

Motion to Set Aside/Vacate Default - Motion to Set Aside/Vacate Default

3/12/2021: Motion to Set Aside/Vacate Default - Motion to Set Aside/Vacate Default

Declaration (name extension) - Declaration of Karen Nunez ISO Motion to Set Aside Entry of Default

3/12/2021: Declaration (name extension) - Declaration of Karen Nunez ISO Motion to Set Aside Entry of Default

Declaration (name extension) - Declaration of Adam Dolce ISO Motion to Set Aside Entry of Default

3/12/2021: Declaration (name extension) - Declaration of Adam Dolce ISO Motion to Set Aside Entry of Default

Summons - Summons on Complaint

5/26/2020: Summons - Summons on Complaint

Proof of Service by Substituted Service - Proof of Service by Substituted Service

6/24/2020: Proof of Service by Substituted Service - Proof of Service by Substituted Service

Proof of Personal Service - Proof of Personal Service

6/24/2020: Proof of Personal Service - Proof of Personal Service

Request for Entry of Default / Judgment - Request for Entry of Default / Judgment

7/13/2020: Request for Entry of Default / Judgment - Request for Entry of Default / Judgment

Request for Entry of Default / Judgment - Request for Entry of Default / Judgment

7/23/2020: Request for Entry of Default / Judgment - Request for Entry of Default / Judgment

Minute Order - Minute Order (Court Order)

7/24/2020: Minute Order - Minute Order (Court Order)

Answer - Answer

7/24/2020: Answer - Answer

Proof of Personal Service - Proof of Personal Service

2/14/2019: Proof of Personal Service - Proof of Personal Service

Proof of Service by Substituted Service - Proof of Service by Substituted Service

2/14/2019: Proof of Service by Substituted Service - Proof of Service by Substituted Service

Affidavit (name extension) - Affidavit Affidavit of Venue

1/31/2019: Affidavit (name extension) - Affidavit Affidavit of Venue

Civil Case Cover Sheet - Civil Case Cover Sheet

1/31/2019: Civil Case Cover Sheet - Civil Case Cover Sheet

Complaint - Complaint

1/31/2019: Complaint - Complaint

17 More Documents Available

 

Docket Entries

  • 02/03/2022
  • Hearing02/03/2022 at 10:30 AM in Department 25 at 312 North Spring Street, Los Angeles, CA 90012; Order to Show Cause Re: Failure to File Proof of Service

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  • 08/03/2021
  • Hearing08/03/2021 at 09:30 AM in Department 25 at 312 North Spring Street, Los Angeles, CA 90012; Status Conference

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  • 03/30/2021
  • DocketReply in Further Support of Motion to Set Aside Entry of Default; Filed by: Vale Motors, Inc. (Defendant)

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  • 03/24/2021
  • DocketOpposition to Defendant Vale Motors, Inc.?s Motion to Set Aside Entry of Default; Filed by: Enrique Benavidez (Plaintiff)

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  • 03/24/2021
  • DocketDeclaration to Defendant Vale Motors, Inc.?s Motion to Set Aside Entry of Default; Filed by: Enrique Benavidez (Plaintiff)

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  • 03/15/2021
  • DocketStatus Conference scheduled for 08/03/2021 at 09:30 AM in Spring Street Courthouse at Department 25

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  • 03/15/2021
  • DocketMinute Order (Order to Show Cause Re: Entry of Default and Default Judgment...)

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  • 03/15/2021
  • DocketHearing on Motion to Set Aside/Vacate Default (CCP 473.5) scheduled for 04/07/2021 at 10:00 AM in Spring Street Courthouse at Department 25

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  • 03/15/2021
  • DocketOrder to Show Cause Re: Entry of Default and Default Judgment/Dismissal scheduled for 03/15/2021 at 09:30 AM in Spring Street Courthouse at Department 25 updated: Result Date to 03/15/2021; Result Type to Held

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  • 03/12/2021
  • DocketMotion to Set Aside/Vacate Default; Filed by: Vale Motors, Inc. (Defendant); As to: Enrique Benavidez (Plaintiff)

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21 More Docket Entries
  • 02/05/2019
  • DocketCase assigned to Hon. James E. Blancarte in Department 94 Stanley Mosk Courthouse

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  • 02/05/2019
  • DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 02/03/2022 at 08:30 AM in Stanley Mosk Courthouse at Department 94

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  • 02/05/2019
  • DocketNon-Jury Trial scheduled for 07/30/2020 at 08:30 AM in Stanley Mosk Courthouse at Department 94

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  • 01/31/2019
  • DocketFirst Amended Standing Order; Filed by: Clerk

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  • 01/31/2019
  • DocketNotice of Case Assignment - Limited Civil Case; Filed by: Clerk

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  • 01/31/2019
  • DocketStatement of Damages (Personal Injury or Wrongful Death); Filed by: Enrique Benavidez (Plaintiff); As to: Tower Insurance Company of New York (Defendant); Vale Motors, Inc. (Defendant)

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  • 01/31/2019
  • DocketAffidavit Affidavit of Venue; Filed by: Enrique Benavidez (Plaintiff); As to: Tower Insurance Company of New York (Defendant); Vale Motors, Inc. (Defendant)

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  • 01/31/2019
  • DocketCivil Case Cover Sheet; Filed by: Enrique Benavidez (Plaintiff); As to: Tower Insurance Company of New York (Defendant); Vale Motors, Inc. (Defendant)

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  • 01/31/2019
  • DocketSummons on Complaint; Issued and Filed by: Enrique Benavidez (Plaintiff); As to: Tower Insurance Company of New York (Defendant); Vale Motors, Inc. (Defendant)

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  • 01/31/2019
  • DocketComplaint; Filed by: Enrique Benavidez (Plaintiff); As to: Tower Insurance Company of New York (Defendant); Vale Motors, Inc. (Defendant)

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Tentative Rulings

Case Number: 19STLC01109    Hearing Date: April 7, 2021    Dept: 25

HEARING DATE: Wed., April 7, 2021 JUDGE /DEPT: Blancarte/25

CASE NAME: Benavidez v. Tower Insurance Company of New York, et al.

CASE NUMBER: 19STLC01109 COMPL. FILED: 01-31-19

NOTICE: OK DISC. C/O: NONE

DISC. MOT. C/O: NONE

TRIAL DATE: NOT SET

PROCEEDINGS: MOTION TO SET ASIDE ENTRY OF DEFAULT

MOVING PARTY: Defendant Vale Motors, Inc.

RESP. PARTY: Plaintiff Enrique Benavidez

MOTION TO SET ASIDE DEFAULT AND DEFAULT JUDGMENT

(Equitable Powers)

TENTATIVE RULING:

Defendant Vale Motors, Inc.’s Motion to Set Aside Entry of Default is DENIED.

SERVICE:

[X] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[X] Correct Address (CCP §§ 1013, 1013a) OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

OPPOSITION: Filed on March 24, 2021 [ ] Late [ ] None

REPLY: Filed on March 30, 2021 [ ] Late [ ] None

ANALYSIS:

  1. Background

On January 13, 2019, Plaintiff Enrique Benavidez (“Plaintiff”) filed an action against Vale Motors, Inc. dba Vale Auto Sales (“Vale Motors”) and Tower Insurance Company of New York (“Tower Insurance”). Plaintiff filed a proof of service demonstrating that Maria Soledad Nunez, as a person authorized to accept service for Defendant Vale Motors, was sub-served on February 6, 2019 at 11519 Garvey Ave., El Monte, CA 91732, a business address. (2/14/19 Proof of Service.) Plaintiff filed a First Amended Complaint (the “FAC”) on May 26, 2020. Plaintiff filed a proof of service demonstrating that Maria Alberto Nunez, as a person authorized to accept service for Defendant Vale Motors, was sub-served on June 9, 2020 at 11519 Garvey Ave., El Monte CA 91732. (6/24/20 Proof of Service.)

Following Defendant Vale Motors’ failure to respond, default was entered against it on July 23, 2020. No default judgment has yet been entered.

On March 12, 2021, Defendant Vale Motors filed the instant Motion to Set Aside Entry of Default (the “Motion”). Plaintiff filed an Opposition on March 24, and Defendant Vale Motors filed a Reply on March 30.

  1. Legal Standard & Discussion

“When a default judgment has been obtained, equitable relief may be given only in exceptional circumstances.” (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981.) (Italics in original.) “Even where relief is no longer available under statutory provisions, a trial court generally retains the inherent power to vacate a default judgment…where a party establishes that the judgment or order was void for lack of due process or resulted from extrinsic fraud or mistake.” (County of San Diego v. Gorham (2010) 186 Cal.App.4th 1215, 1228.) To obtain relief based on extrinsic mistake or fraud, a moving party 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.” (Id., at p. 982.) (Italics in original.)

Extrinsic fraud occurs when a party is deprived of the opportunity to present a claim or defense because it was kept in ignorance or was in some other way fraudulently prevented from participating in the proceeding by the opposing party. (County of San Diego v. Gorham (2010) 186 Cal.App.4th at p. 1228-29.) Extrinsic mistake is “a term broadly applied when circumstances extrinsic to the litigation have unfairly cost a party a hearing on the merits.” (Rappleyea v. Campbell (1994) 8 Cal.4th 975 at p. 981.)

A. Meritorious Defense

Defendant Vale Motors states Plaintiff’s primary allegation is that a vehicle it sold to Plaintiff could not “legally pass a smog test.” (Mot., p. 1:21-26.) Defendant argues it has evidence that the vehicle in question did indeed pass a smog check two weeks before it was sold to Plaintiff. (Id. at pp. 1:27-2:3; 4:8-9.) Thus, Defendant Vale Motors has a meritorious defense.

B. Satisfactory Excuse for not Presenting Earlier Defense

As to the second element requiring a satisfactory excuse for not presenting a defense to the original action, Defendant Vale Motors argues default was entered due to the mistake of its owners. (Mot., p. 2:4-27.) Specifically, Karen Nunez (“Nunez”) explains that she and her husband, Mario Nunez, own Defendant Vale Motors and that they are primarily Spanish speakers. (Id., Nunez Decl., ¶ 2.) Nunez further explains that “[a]round when Plaintiff first filed his lawsuit,” she employed her sister Melissa Galicia (“Galicia”) whose English was much better. (Id. at ¶ 4.) For this reason, Nunez relied on Galicia to better understand important English correspondence, including the Summons and Complaint for this action when it was served. (Id. at ¶¶ 4-5.)

Galicia provides her declaration explaining that sometime in July 2020, she called the Court clerk at (213) 310-7025 and spoke to someone named “John” who advised her courts were “frozen” due to the COVID-19 pandemic but that there was a hearing scheduled in March 2021. (Id., Galicia Decl., ¶¶ 4-5.) She also states the clerk mentioned “something about a ‘default’” but does not recall whether it was in reference to Defendant Vale Motors. (Id.) After the call, Galicia states she googled the word “default” and determined it simply meant the case was “frozen” until March 2021. (Id.) She communicated this understanding to Nunez and her husband which Galicia now knows was mistaken. (Id. at ¶ 7.)

Extrinsic mistake is given a broad meaning and “tend[s] to encompass almost any set of extrinsic circumstances which deprive a party of a fair adversary hearing.” (In re Marriage of Thorne & Raccina (2012) 203 Cal.App.4th 492, 505.) “Extrinsic mistake involves the excusable neglect of a party” and broadly applies “when circumstances extrinsic to the litigation have unfairly cost a party a hearing on the merits.” (Id.) Situations in which the court has found extrinsic mistake include (1) when a party becomes incompetent but no guardian ad litem is appointed; (2) when one party relies on another interested party to defend; (3) where a party relies on an attorney who becomes incapacitated to act; (4) “when a mistake led a court to do what it never intended to do”; (5) where a mistaken belief prevented proper notice of the action; (6) where the moving party was disabled when judgment was entered; (7) where, due to the negligence of a party’s attorney, an answer was not properly filed; and (8) where the moving party mistakenly believed it was immune from suit. (Id.)

Importantly, equitable relief is properly denied where “a party has been given notice of an action and has not been prevented from participating therein. He has had an opportunity to present his case to the court and to protect himself from mistake and from any fraud attempted by his adversary. [Citations.]” (Kulchar v. Kulchar (1969) 1 Cal.3d 467, 472.)

The Court is not convinced Defendant Vale Motors was deprived of a fair adversary hearing due to circumstances extrinsic to the litigation.

First, Defendant’s owner Nunez states that when Plaintiff “first filed his lawsuit,” she asked her sister Galicia for help interpreting the document. (Mot., Nunez Decl., ¶ 4.) Notably, Plaintiff first filed his lawsuit in January 2019, which was served on February 14, 2019. Defendant Vale Motors does not deny being served with the first Complaint nor did Defendant Vale Motors file an answer to the Complaint. Defendant Vale Motors also admittedly had actual notice the FAC had been filed and served but relied on the advice of a layperson to determine whether any immediate action was required. Even during the COVID-19 pandemic, this does not demonstrate Defendant Vale Motors was deprived of a fair hearing or that it was prevented from participating in the action; rather, it demonstrates Defendant Vale Motors’ owners made a conscious choice to rely on a third-party layperson’s advice regarding Defendant Vale Motors’ responsibilities in the instant action. The Court is not convinced Nunez’s reliance on Galicia’s advice was reasonable. Nunez also does not state she took any steps herself to confirm no action on Defendant Vale Motors’ part was necessary until March 2021.

C. Reasonable Diligence

Defendant Vale Motors must also demonstrate reasonable diligence in seeking to set aside the default once discovered.

Here, the request for entry of default as to Defendant Vale Motors was served on July 23, 2020 by mail at 11519 Garvey Ave., El Monte CA, 91732. (7/23/20 Request for Entry of Default.) This is the same address at which Defendant Vale Motors was served with the Summons and Complaint and the FAC. (2/14/19 Proof of Service; 6/24/20 Proof of Service.) “A letter correctly addressed and properly mailed is presumed to have been received in the ordinary course of mail.” (Evid. Code, § 641.) Importantly, Defendant Vale Motors has not denied it received a copy of the request for entry of default. Thus, Defendant Vale Motors was presumably on notice default against it had been requested during the period Defendant Vale Motors’ owners believed courts were “frozen.”

Defendant Vale Motors, however, is silent as to when the default was discovered. Defendant Vale Motors’ owner, Nunez, only apologizes to the Court for “now asking, many months later, for relief from default.” (Mot., Nunez Decl., ¶ 8.) Without attesting to when the default was discovered, the Court cannot conclude Defendant Vale Motors was diligent in setting aside the default. Thus, Defendant Vale has not satisfied the third prong of the test.

  1. Conclusion & Order

For the foregoing reasons, Defendant Vale Motors, Inc.’s Motion to Set Aside Entry of Default is DENIED.

Moving party is ordered to give notice.

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