This case was last updated from Los Angeles County Superior Courts on 12/10/2020 at 00:15:27 (UTC).

FIRST NATIONAL INSURANCE COMPANY OF AMERICA VS AVIRON AUTO COLLISION CENTERS, INC., A CALIFORNIA CORPORATION, ET AL.

Case Summary

On 06/11/2019 FIRST NATIONAL INSURANCE COMPANY OF AMERICA filed a Contract - Other Contract lawsuit against AVIRON AUTO COLLISION CENTERS, INC , A CALIFORNIA 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 WENDY CHANG. The case status is Other.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******5577

  • Filing Date:

    06/11/2019

  • Case Status:

    Other

  • Case Type:

    Contract - Other Contract

  • Courthouse:

    Spring Street Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Judge

WENDY CHANG

 

Party Details

Plaintiff

FIRST NATIONAL INSURANCE COMPANY OF AMERICA

Defendants

AVIRON AUTO COLLISION CENTERS INC. A CALIFORNIA CORPORATION

WESTWOOD AUTO BODY A FICTICIOUS BUSINESS NAME OF AVIRON AUTO COLLISION CENTERS INC

Attorney/Law Firm Details

Plaintiff Attorney

ROSENBERG GARY

Defendant Attorney

GOODFRIEND MARK EUGENE

 

Court Documents

Request for Dismissal - Request for Dismissal

1/6/2020: Request for Dismissal - Request for Dismissal

Declaration of Interest, Costs and Attorney Fees - Declaration of Interest, Costs and Attorney Fees

1/6/2020: Declaration of Interest, Costs and Attorney Fees - Declaration of Interest, Costs and Attorney Fees

Declaration Pursuant to 585 CCP in Support of Default Judgment - Declaration Pursuant to 585 CCP in Support of Default Judgment

1/6/2020: Declaration Pursuant to 585 CCP in Support of Default Judgment - Declaration Pursuant to 585 CCP in Support of Default Judgment

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

1/6/2020: Request for Entry of Default / Judgment - Request for Entry of Default / Judgment

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

3/10/2020: Motion to Set Aside/Vacate Default - Motion to Set Aside/Vacate Default

Declaration (name extension) - Declaration of Mark Goodfriend

3/10/2020: Declaration (name extension) - Declaration of Mark Goodfriend

Opposition (name extension) - Opposition to Motion of Aviron to Set Aside Default

4/7/2020: Opposition (name extension) - Opposition to Motion of Aviron to Set Aside Default

Notice Re: Continuance of Hearing and Order - Notice Re: Continuance of Hearing and Order

4/15/2020: Notice Re: Continuance of Hearing and Order - Notice Re: Continuance of Hearing and Order

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

6/24/2020: Reply (name extension) - Reply in Support of Motion to Set Aside Default

Answer - Answer

7/1/2020: Answer - Answer

Notice of Ruling - Notice of Ruling

8/5/2020: Notice of Ruling - Notice of Ruling

Request for Dismissal - Request for Dismissal

12/7/2020: Request for Dismissal - Request for Dismissal

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

9/10/2019: Request for Entry of Default / Judgment - Request for Entry of Default / Judgment

Declaration (name extension) - Declaration Declaration of Non-Service

6/26/2019: Declaration (name extension) - Declaration Declaration of Non-Service

First Amended Standing Order - First Amended Standing Order

6/11/2019: First Amended Standing Order - First Amended Standing Order

Complaint - Complaint

6/11/2019: Complaint - Complaint

Summons - Summons on Complaint

6/11/2019: Summons - Summons on Complaint

Civil Case Cover Sheet - Civil Case Cover Sheet

6/11/2019: Civil Case Cover Sheet - Civil Case Cover Sheet

11 More Documents Available

 

Docket Entries

  • 12/07/2020
  • DocketOn the Complaint filed by First National Insurance Company of America on 06/11/2019, entered Request for Dismissal without prejudice filed by First National Insurance Company of America as to the entire action

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  • 12/07/2020
  • DocketAddress for Gary Rosenberg (Attorney) null

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  • 12/07/2020
  • DocketNon-Jury Trial scheduled for 12/08/2020 at 08:30 AM in Spring Street Courthouse at Department 26 Not Held - Vacated by Court on 12/07/2020

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  • 12/07/2020
  • DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 06/14/2022 at 10:30 AM in Spring Street Courthouse at Department 26 Not Held - Vacated by Court on 12/07/2020

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  • 08/05/2020
  • DocketNotice of Ruling; Filed by: Aviron Auto Collision Centers, INC., a California Corporation (Defendant)

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  • 07/01/2020
  • DocketUpdated -- Motion to Set Aside/Vacate Default: Filed By: Aviron Auto Collision Centers, INC., a California Corporation (Defendant); Result: Granted; Result Date: 07/01/2020

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  • 07/01/2020
  • DocketUpdated -- Answer: Status Date changed from 06/25/2020 to 07/01/2020; As To Parties: removed

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  • 07/01/2020
  • DocketOn the Complaint filed by First National Insurance Company of America on 06/11/2019, Default entered on 09/10/2019, Vacated - .

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  • 07/01/2020
  • DocketMinute Order (Hearing on Motion to Set Aside/Vacate Default (CCP 473.5))

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  • 07/01/2020
  • DocketHearing on Motion to Set Aside/Vacate Default (CCP 473.5) scheduled for 07/01/2020 at 10:00 AM in Spring Street Courthouse at Department 26 updated: Result Date to 07/01/2020; Result Type to Held - Motion Granted

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19 More Docket Entries
  • 09/10/2019
  • DocketDefault entered as to Aviron Auto Collision Centers, INC., a California Corporation; On the Complaint filed by First National Insurance Company of America on 06/11/2019

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  • 06/26/2019
  • DocketDeclaration Declaration of Non-Service; Filed by: First National Insurance Company of America (Plaintiff)

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  • 06/12/2019
  • DocketNon-Jury Trial scheduled for 12/08/2020 at 08:30 AM in Stanley Mosk Courthouse at Department 94

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  • 06/12/2019
  • DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 06/14/2022 at 08:30 AM in Stanley Mosk Courthouse at Department 94

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  • 06/12/2019
  • DocketCase assigned to Hon. Wendy Chang in Department 94 Stanley Mosk Courthouse

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  • 06/11/2019
  • DocketComplaint; Filed by: First National Insurance Company of America (Plaintiff); As to: Aviron Auto Collision Centers, INC., a California Corporation (Defendant); Westwood Auto Body, a ficticious business name of Aviron Auto Collision Centers, INC (Defendant)

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  • 06/11/2019
  • DocketCivil Case Cover Sheet; Filed by: First National Insurance Company of America (Plaintiff); As to: Aviron Auto Collision Centers, INC., a California Corporation (Defendant); Westwood Auto Body, a ficticious business name of Aviron Auto Collision Centers, INC (Defendant)

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  • 06/11/2019
  • DocketSummons on Complaint; Issued and Filed by: First National Insurance Company of America (Plaintiff); As to: Aviron Auto Collision Centers, INC., a California Corporation (Defendant); Westwood Auto Body, a ficticious business name of Aviron Auto Collision Centers, INC (Defendant)

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  • 06/11/2019
  • DocketNotice of Case Assignment - Limited Civil Case; Filed by: Clerk

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  • 06/11/2019
  • DocketFirst Amended Standing Order; Filed by: Clerk

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Tentative Rulings

Case Number: 19STLC05577    Hearing Date: July 01, 2020    Dept: 26

First National Ins. Co. v. Aviron Auto Collision Centers, Inc., et al.

MOTION TO VACATE ENTRY OF DEFAULT

(CCP § 473(b))

TENTATIVE RULING:

Defendant Aviron Auto Collision Centers, Inc. dba Westwood Autobody’s Motion to Vacate Entry of Default is GRANTED. A COPY OF THE PROPOSED ANSWER HAVING BEEN FILED ON JUNE 25, 2020, THE COURT DEEMS THE ANSWER FILED ON JULY 1, 2020. DEFENDANT

TO PAY PLAINTIFF $200.00 WITHIN 20 DAYS’ NOTICE OF ENTRY OF THE ORDER GRANTING THE MOTION.

ANALYSIS:

Plaintiff First National Insurance Company (“Plaintiff”) filed the instant action for breach of contract against Defendant Aviron Auto Collision Centers, Inc. dba Westwood Autobody (erroneously sued as separate defendants) (“Defendant”) on June 11, 2019. Following Defendant’s failure to file a responsive pleading, the Court entered its default on September 10, 2019.

Defendant filed the instant Motion to Vacate Entry of Default on March 10, 2020. Plaintiff filed an opposition on April 7, 2020 and Defendant replied on June 25, 2020.

Discussion

Defendant seeks relief from the default entered on September 10, 2019 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.) Additionally, a copy of the proposed response to the

The Motion is timely brought six months after dismissal of the action and is supported by an attorney affidavit of fault. Defendant’s attorney declares that he sought to contact Plaintiff’s counsel regarding filing an answer on September 4, 2019. (Motion, Goodfriend Decl., ¶3 and Exh. 1.) Defense counsel was unable to get ahold of Plaintiff’s counsel on that date and did not follow up in time to prevent entry of default. (Id. at ¶¶4-6 and Exhs. 2-3.) Plaintiff’s contention in opposition that the entry of default was entirely the fault of Defendant and that defense counsel was not hired until after entry of default is unsupported by any evidence and directly contradicted by the evidence in support of the Motion. (Opp., Rosen Decl.) While Plaintiff is correct that the Motion fails to include a proposed answer as required, this can be corrected at the time of the hearing. (Code Civ. Proc., § 473, subd. (b); Carmel, Ltd. v. Tavoussi (2009) 175 Cal.App.4th 393, 403.)

Plaintiff requests and is entitled to “reasonable compensatory legal fees and costs” if the Motion for relief is granted based on attorney fault. (Code Civ. Proc., § 473, subd. (b).) Plaintiff’s attorney contends that he charges $500.00 per hour and has spent ten hours on this matter since entry of default. (Opp., ¶20.) The Court finds the number of hours worked unreasonable. As an initial matter, default should not have been entered in this case. Defense counsel emailed Plaintiff’s counsel on September 3, 2019, a full week before entry of default. Plaintiff’s counsel apparently did not see this communication based on its police “that this office does not accept or read email communications or consent to service of process by way of email communications with regard to pending claims and/or litigation. Please communicate with this office through ordinary mail when communicating in writing.” (Motion, Exh. 2.) Given the day and age, such a policy is both unreasonable and contradicted by Plaintiff’s express consent to electronic service as set forth in Cal. Rules of Court Rule 2.251, subd. (1)(B)(ii).

Furthermore, Plaintiff’s filing of a default judgment packet was not reasonable. Shortly after entry of default, Plaintiff’s counsel was made aware that Defendant was represented by counsel and would respond to the Complaint. (Motion, Goodfriend Decl., ¶¶8-13 and Exhs. 7-10.) Defendant also asked that Plaintiff stipulate to set aside the default based on the same arguments made in the instant Motion. (Ibid.) Defendant also asked for confirmation that no default judgment would be sought. (Ibid.) Plaintiff made no apparent response to these requests to stipulate to vacate the entry of default other than to insist upon informal negotiations. Instead of good faith resolution of the issue, Plaintiff forced Defendant to file the instant Motion by requesting entry of default judgment without so much as a courtesy notice to defense counsel prior to the filing of the request. The Court finds apt Defendant’s citation to Lasalle v. Vogel (2019) 36 Cal.App.5th 127, 130, that “the policy of the state is that the parties to a lawsuit ‘shall cooperate.’ Period. Full stop.” (Lasalle v. Vogel (2019) 36 Cal.App.5th 127.)

The Court considers Plaintiff’s approach to this default contrary to the principles espoused in Lasalle and that much of the expense incurred with respect to the request for default judgment and opposition to the instant Motion is not reasonable. Additionally, the hourly rate is unreasonably high given that this is a straightforward breach of contract matter. (See 585 Decl., filed 1/6/20.) The hourly rate is more appropriately set at $200.00. Plaintiff, therefore, is entitled to reasonable compensatory legal fees and costs of $200.00.

Conclusion

Defendant Aviron Auto Collision Centers, Inc. dba Westwood Autobody’s Motion to Vacate Entry of Default is GRANTED. A COPY OF THE PROPOSED ANSWER HAVING BEEN FILED ON JUNE 25, 2020, THE COURT DEEMS THE ANSWER FILED ON JULY 1, 2020. DEFENDANT

TO PAY PLAINTIFF $200.00 WITHIN 20 DAYS’ NOTICE OF ENTRY OF THE ORDER GRANTING THE MOTION.

Moving party to give notice.