This case was last updated from Los Angeles County Superior Courts on 10/22/2021 at 00:38:29 (UTC).

MOUNTAIN RECOVERY, LLC VS JOSE ORTEGA, ET AL.

Case Summary

On 10/03/2019 MOUNTAIN RECOVERY, LLC filed a Personal Injury - Motor Vehicle lawsuit against JOSE ORTEGA. 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 Dockets

 

Case Details

  • Case Number:

    *******9140

  • Filing Date:

    10/03/2019

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Motor Vehicle

  • County, State:

    Los Angeles, California

Judge Details

Judge

JAMES E. BLANCARTE

 

Party Details

Plaintiff

MOUNTAIN RECOVERY LLC

Defendants

ORTEGA SOLEDAD AKA SOLEDAD OCHOA ORTEGA

ORTEGA JOSE AKA JOSE LUIS ORTEGA

Attorney/Law Firm Details

Plaintiff Attorneys

BENSON SUSAN MARY

TUCKER VERNON C.

Defendant Attorney

DEMAIO MICHELLE MARIE BROWN

Court Documents

Court documents are not available for this case.

 

Docket Entries

  • 04/18/2022
  • Hearing04/18/2022 at 08:30 AM in Department 25 at 312 North Spring Street, Los Angeles, CA 90012; Jury Trial

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  • 10/18/2021
  • DocketSummons First Amended; Issued and Filed by: Mountain Recovery, LLC (Plaintiff); As to: Jose Ortega (Defendant)

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  • 10/18/2021
  • DocketNotice of Continuance; Filed by: Mountain Recovery, LLC (Plaintiff)

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  • 10/15/2021
  • DocketStipulation and Order Stipulation and Order to Continue Trial; Signed and Filed by: Mountain Recovery, LLC (Plaintiff); As to: Jose Ortega (Defendant); Soledad Ortega (Defendant)

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  • 10/15/2021
  • DocketPursuant to written stipulation, Jury Trial scheduled for 10/19/2021 at 08:30 AM in Spring Street Courthouse at Department 25 Not Held - Continued - Stipulation was rescheduled to 04/18/2022 08:30 AM

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  • 10/04/2021
  • DocketAmended Complaint (1st); Filed by: Mountain Recovery, LLC (Plaintiff); As to: Jose Ortega (Defendant)

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  • 09/30/2021
  • DocketStipulation and Order Stipulation and Order to File First Amended Complaint; Signed and Filed by: Mountain Recovery, LLC (Plaintiff); As to: Jose Ortega (Defendant); Soledad Ortega (Defendant)

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  • 09/21/2021
  • DocketSubstitution of Attorney; Filed by: Mountain Recovery, LLC (Plaintiff)

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  • 07/02/2021
  • DocketNotice of Ruling; Filed by: Jose Ortega (Defendant); Soledad Ortega (Defendant)

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  • 06/29/2021
  • DocketJury Trial scheduled for 10/19/2021 at 08:30 AM in Spring Street Courthouse at Department 25

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43 More Docket Entries
  • 11/26/2019
  • DocketProof of Personal Service; Filed by: Mountain Recovery, LLC (Plaintiff); Service Date: 10/06/2019; Service Cost: 120.00; Service Cost Waived: No

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  • 11/26/2019
  • DocketProof of Personal Service; Filed by: Mountain Recovery, LLC (Plaintiff); Service Date: 10/06/2019; Service Cost: 120.00; Service Cost Waived: No

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  • 10/04/2019
  • DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 10/06/2022 at 08:30 AM in Stanley Mosk Courthouse at Department 94

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  • 10/04/2019
  • DocketNon-Jury Trial scheduled for 04/01/2021 at 08:30 AM in Stanley Mosk Courthouse at Department 94

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  • 10/04/2019
  • DocketCase assigned to Hon. James E. Blancarte in Department 94 Stanley Mosk Courthouse

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  • 10/03/2019
  • DocketFirst Amended Standing Order; Filed by: Clerk

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  • 10/03/2019
  • DocketNotice of Case Assignment - Limited Civil Case; Filed by: Clerk

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  • 10/03/2019
  • DocketSummons on Complaint; Issued and Filed by: Mountain Recovery, LLC (Plaintiff); As to: Jose Ortega (Defendant); Soledad Ortega (Defendant)

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  • 10/03/2019
  • DocketCivil Case Cover Sheet; Filed by: Mountain Recovery, LLC (Plaintiff); As to: Jose Ortega (Defendant); Soledad Ortega (Defendant)

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  • 10/03/2019
  • DocketComplaint; Filed by: Mountain Recovery, LLC (Plaintiff); As to: Jose Ortega (Defendant); Soledad Ortega (Defendant)

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Tentative Rulings

Case Number: 19STLC09140    Hearing Date: April 27, 2021    Dept: 25

HEARING DATE: Tue., April 27, 2021 JUDGE /DEPT: Chilton/25

CASE NAME: Mountain Recovery, LLC v. Ortega, et al. COMPL. FILED: 10-13-19

CASE NUMBER: 19STLC09140 DEFAULT: 12-02-19

NOTICE: OK DEF. JDMT: 02-21-20

PROCEEDINGS: MOTION FOR ORDER OF RELIEF SETTING ASIDE DEFAULT JUDGMENT

MOVING PARTY: Defendants Jose Ortega and Soledad Ortega and Real Party in Interest, Infinity Insurance Company

RESP. PARTY: None

MOTION TO SET ASIDE/VACATE DEFAULT & DEFAULT JUDGMENT

(Equitable Relief)

TENTATIVE RULING:

Defendants Jose Ortega and Soledad Ortega and Real Party in Interest Infinity Insurance Company’s Motion is GRANTED. The default entered on December 2, 2019 and default judgment entered on February 21, 2020 are HEREBY VACATED. Defendants are to file their proposed answer within ten (10) days of notice of this order.

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: None filed as of April 23, 2021 [ ] Late [X] None

REPLY: None filed as of April 23, 2021 [ ] Late [X] None

ANALYSIS:

I. Background

On October 3, 2019, Plaintiff Mountain Recovery, LLC (“Plaintiff”) filed an action against Defendants Jose Ortega a.k.a. Jose Luis Ortega (“Jose”) and Soledad Ortega a.k.a. Soledad Ochoa Ortega (“Soledad”) (collectively, “Defendants”). Following Defendants’ failure to respond, default was entered against both on December 2, 2019. A default judgment of $13,235.36 was thereafter entered on February 21, 2020.

On August 19, 2020, Defendants and Real Party in Interest, Infinity Insurance Company (“Infinity”), filed the instant Motion for Order of Relief Setting Aside Default Judgment (the “Motion”).

At the initial March 1 hearing, the Court found that Defendants’ and Infinity’s request for relief under Code of Civil Procedure section 473, subdivision (b), was untimely and that the failure to serve a statement of damages did not make the default and default judgment void because Plaintiff only sought property damages. (3/1/21 Minute Order.) The Court also noted that Defendants argued in passing they were never served with the Summons and Complaint because they were out of the country. (Id.) The Court continued the hearing and requested additional documentary evidence in support of this argument. (Id.)

On March 29, Defendants and Infinity filed a supplemental brief raising new arguments in support of their request to set aside the default and default judgment as well as supporting declarations from Defendants and their counsel.

Plaintiff did not file an opposition.

II. Legal Standard & Discussion

A. Equitable Relief

In its supplemental papers, Defendants argue the default and default judgment should be set aside on equitable grounds. (3/29/21 Supp. Brief, pp. 6:16-7:16.)

“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 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.” (Id., at p. 982.)

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 false return of summons may constitute both extrinsic fraud and mistake” and when a judgment is based on a false return of summons, the court has the inherent power to set the judgment aside, even if the statutory period to get aside judgment on other grounds has run. (County of San Diego v. Gorham (2010) 186 Cal.App.4th at p. 1229.)

“The law ‘favor[s] a hearing on the merits whenever possible, and…appellate courts are much more disposed to affirm an order which compels a trial on the merits than to allow a default judgment to stand.’ [Citation.]” (Mechling v. Asbestos Defendants (2018) 29 Cal.App.5th 1241, 1246.)

1. Meritorious Defense

A party may satisfy this element by submitting a proposed pleading or a declaration asserting a meritorious defense exists. (Mechling v. Asbestos Defendants, supra, 29 Cal.App.5th at p. 1247.)

Here, Defendants and Infinity submit a proposed answer asserting nine affirmative defenses. (Mot., DeMaio Decl., ¶ 14, Exh. J.) Defendants’ and Infinity’s attorneys also provide declarations stating a meritorious defense exists. (Id., Borromeo Decl., ¶ 8; DeMaio Decl., ¶ 11.) This satisfies the meritorious defense requirement.

2. Satisfactory Excuse for Not Presenting a Timely Defense

As discussed at the previous hearing, Defendants and Infinity provided evidence that Infinity’s Litigation Specialist Mark Gibson (“Gibson”) repeatedly attempted to ascertain whether a complaint against Defendants had been filed and whether it had been served. (Mot., Gibson Decl., ¶ 3.) Although the Complaint was filed on October 3, 2019 and purportedly served on October 6, 2019, Gibson attests Safeway Insurance representative Reyna Alvarado (“Alvarado”), misrepresented the lawsuit was still “out for service” as of November 27, 2019. (Id. at ¶ 7.) Plaintiff is a subrogee of Safeway Insurance. (Compl., ¶ 2.) Gibson did not receive a copy of the Summons and Complaint from Alvarado until January 2, 2020. (Mot., Gibson Decl., ¶ 9.) Nor did Gibson have any knowledge that this action would be filed by Plaintiff rather than Safeway Insurance Company. (Id. at ¶ 11.) Thus, Gibson could not have located the case number for this action on his own by searching under the parties’ names. (Mot., p. 7:19-22.) By the time this action was assigned to in-house counsel Irene Borromeo (“Borromeo”) on January 2, 2020, default had already been entered one month before, on December 2, 2019. Gibson was not notified that a request for entry of default had been filed. (Id., Gibson Decl., ¶ 11.) Further, Defendants provide their sworn declaration stating that they were out of the country at the time the Summons and Complaint were purportedly served and that they never received any paperwork regarding the instant action. (3/29/21 Soledad & Jose Decl., ¶¶ 5-7.)

The Court finds this a satisfactory excuse for not presenting a defense before default was entered.

3. Diligence in Setting Aside the Default

After reviewing the docket and discovering the default, attorney Borromeo attests she called and left a voicemail for Plaintiff’s attorney on January 23, 2020 to discuss whether Plaintiff was agreeable to set aside the default. (Mot., Borromeo Decl., ¶¶ 4, 6.) Borromeo left three other voice messages on February 27, 2020 and March 10, 2020, but her messages were not returned. (Id.) Thereafter, the matter was transferred to attorney Michelle DeMaio (“DeMaio”) on July 29, 2020. (Id., DeMaio Decl., ¶ 2.)

Attorney DeMaio attests she contacted Plaintiff’s attorney on July 29, 2020, discussed the action at length, and advised she was following up regarding whether Plaintiff would stipulate to set aside the default and default judgment. (Id. at ¶ 3.) Attorney DeMaio left voicemails for Plaintiff’s attorney on August 6 and 7, 2020, and followed up with an email attaching the proposed stipulation. (Id. at ¶¶ 4-5, Exh. D, E.) On August 7, 2020, attorney DeMaio received an email from Plaintiff’s counsel stating he did not want her to waste her time with a motion to set aside if his client would agree to set aside the default and default judgment. (Id.) Attorney DeMaio called and left voicemail messages for Plaintiff’s counsel on August 11, 12, 13, and 14, and followed up with an email each time. (Id. at ¶¶ 6-9, Exhs. F-I.) Plaintiff’s counsel did not further respond to attorney DeMaio’s efforts to stipulate. (Id. at ¶ 10.)

The Court finds Defendants’ and Infinity’s counsel was sufficiently diligent in seeking to set aside the default and default judgment. Counsel sought to resolve the situation without judicial intervention. Only after realizing Plaintiff would not do so did Defendants and Infinity seek relief from the Court.

Lastly, the Court notes that “[w]hen evaluating a motion to set aside a default judgment on equitable grounds, the court ‘must weigh the reasonableness of the conduct of the moving party in light of the extent of the prejudice to the responding party.’ [Citation.]” (Mechling v. Asbestos Defendants, supra, 29 Cal.App.5th at p. 1249.) Importantly, Plaintiff has been on notice of Defendants’ and Infinity’s efforts to set aside the default and default judgment since January 2020, so it cannot argue it has been prejudiced as a result of this Motion. Nor has Plaintiff filed an opposition arguing otherwise.

III. Conclusion & Order

For the foregoing reasons, Defendants Jose Ortega and Soledad Ortega and Real Party in Interest Infinity Insurance Company’s Motion is GRANTED. The default entered on December 2, 2019 and default judgment entered on February 21, 2020 are HEREBY VACATED. Defendants are to file their proposed answer within ten (10) days of notice of this order.

Moving parties are ordered to give notice.

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