STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY VS MANUEL DE LA CRUZ

Tentative Rulings

Case Number: 19STLC00849    Hearing Date: September 21, 2020    Dept: 26

State Farm v. De La Cruz, et al

MOTION TO VACATE ENTRY OF DEFAULT

(CCP § 473(b))

TENTATIVE RULING:

Defendant Manuel De La Cruz’s Motion to Vacate Default is GRANTED. THE DEFAULT ENTERED ON JULY 23, 2019 IS HEREBY VACATED. DEFENDANT TO FILE AND SERVE HIS ANSWER WITHIN 20 DAYS’ SERVICE OF THIS ORDER.

ANALYSIS:

On January 24, 2019, Plaintiff State Farm Mutual Automobile Insurance Company (“Plaintiff”) filed the instant action for automobile subrogation against Defendant Manuel De La Cruz (“Defendant”). Following Defendant’s failure to respond, default was entered against him on July 23, 2019. Defendant filed the instant Motion to Set Aside Entry of Default on September 6, 2019 without proof of service of the same on Plaintiff. Additionally, the Motion was not brought pursuant to any legal authority. The Motion initially came for hearing on September 19, 2019, at which time it was continued to allow service of the motion papers on Plaintiff and for Defendant to file and serve supplemental papers setting forth the legal basis of his request for relief. On the same date, Defendant filed and served a supplemental declaration setting forth additional facts in support of the Motion and attaching a copy of his Notice of Motion. However, the supplemental declaration still did not comply with Cal. Rules of Court, Rule 3.1113, subdivision (b) because it lacked supporting legal authority.

At the second hearing on November 4, 2019, the Court continued the matter to give Defendant one final opportunity to comply with the Court’s order. Specifically, the Court ordered Defendant to file and serve supplemental papers correcting the problems discussed above to at least 16 court days prior to the new hearing date. Defendant was again warned that failure to comply with the Court’s orders might result in the Motion being placed off calendar or denied.

At the third hearing on January 13, 2020, the Court again continued the matter due to Defendant’s lack of supplemental briefing. Defendant filed a supplemental brief and declaration on February 24, 2020. While the supplemental brief provided a legal basis for the requested relief, at the hearing on August 17, 2020, the Court determined the declaration was defective because it was not made under penalty of perjury. On September 3, 2020, Defendant filed a supplemental declaration under penalty of perjury.

Discussion

Defendant moves for relief from the default judgment pursuant to Code of Civil Procedure, section 473, subdivision (b), under which 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.) The Motion must also be accompanied by a copy of the moving party’s responsive pleading. (Code Civ. Proc., § 473, subd. (b).)

The Motion was initially filed less than six months after entry of default, making it timely under the moving statute. It is now accompanied by a declaration stating that Defendant did not receive notice of the action in time to respond. (Motion, De La Cruz Decl., filed 9/3/20.) Specifically, the Summons and Complaint were delivered to Defendant’s brother who failed to timely inform Defendant. (Ibid.) Upon learning of this action, Defendant came to Court but was informed that the time to file a response to the Complaint had passed. (Ibid.) Defendant, therefore, has demonstrated the default was taken against him by surprise due to lack of actual notice. Finally, the Motion is also accompanied by a copy of Defendant’s proposed Answer to the Complaint and has remained unopposed by Plaintiff since it was filed more than a year ago. (Motion, De La Cruz Decl., filed 2/24/20, Proposed Answer.)

Conclusion

Defendant Manuel De La Cruz’s Motion to Vacate Default is GRANTED. THE DEFAULT ENTERED ON JULY 23, 2019 IS HEREBY VACATED. DEFENDANT TO FILE AND SERVE HIS ANSWER WITHIN 20 DAYS’ SERVICE OF THIS ORDER.

Court clerk to give notice.

Case Number: 19STLC00849    Hearing Date: August 17, 2020    Dept: 26

MOTION TO VACATE ENTRY OF DEFAULT

(CCP § 473(b))

TENTATIVE RULING:

0Defendant Manuel De La Cruz’s Motion to Vacate Entry of Default is CONTINUED TO SEPTEMBER 21, 2020 AT 10:00 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE.

ANALYSIS:

On January 24, 2019, Plaintiff State Farm Mutual Automobile Insurance Company (“Plaintiff”) filed the instant action for automobile subrogation against Defendant Manuel De La Cruz (“Defendant”).  Following Defendant’s failure to respond, default was entered against him on July 23, 2019. Defendant filed the instant Motion to Set Aside Entry of Default on September 6, 2019 without proof of service of the same on Plaintiff. Additionally, the Motion was not brought pursuant to any legal authority. “The memorandum must contain a statement of facts, a concise statement of the law, evidence and arguments relied on, and a discussion of the statutes, cases, and textbooks cited in support of the position advanced.” (Cal. Rules of Court, Rule 3.1113, subd. (b).)

The Motion initially came for hearing on September 19, 2019, at which time it was continued to allow service of the motion papers on Plaintiff and for Defendant to file and serve supplemental papers setting forth the legal basis of his request for relief. On the same date, Defendant filed and served a supplemental declaration setting forth additional facts in support of the Motion and attaching a copy of his Notice of Motion. However, the supplemental declaration still did not comply with Cal. Rules of Court, Rule 3.1113, subdivision (b) because it lacked supporting legal authority.

At the second hearing on November 4, 2019, the Court continued the matter to give Defendant one final opportunity to comply with the Court’s order. Specifically, the Court ordered Defendant to file and serve supplemental papers correcting the problems discussed above to at least 16 court days prior to the new hearing date. Defendant was again warned that failure to comply with the Court’s orders might result in the Motion being placed off calendar or denied.

At the third hearing on January 13, 2020, the Court again continued the matter due to Defendant’s lack of supplemental briefing. Defendant filed a supplemental brief and declaration on February 24, 2020. However, the declaration is defective because it is not made under penalty of perjury. A declaration must, if executed within California, state the date and place of execution, or if executed at any place, within or outside of California, state the date of execution and that it is so certified or declared under the laws of the State of California. (Code Civ. Proc., § 2015.5.) Failure to properly verify a declaration renders it inadmissible. (See ViaView, Inc. v. Retzlaff (2016) 1 Cal.App.5th 198, 217.) The Court, therefore, cannot consider the contents of the declaration.

The hearing on Defendant’s Motion to Vacate is CONTINUED TO SEPTEMBER 21, 2020 AT 10:00 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE. AT LEAST TEN (10) COURT DAYS PRIOR TO THE CONTINUED HEARING DATE DEFENDANT IS TO FILE AND SERVE A SUPPLEMENTAL DECLARATION THAT CORRECTS THE DEFECTS NOTED ABOVE. FAILURE TO DO SO MAY RESULT IN THE MOTION BEING PLACED OFF CALENDAR OR DENIED.

Case Number: 19STLC00849    Hearing Date: January 13, 2020    Dept: 94

TENTATIVE RULING:

Defendant Manuel De La Cruz’s Motion to Vacate Default and Default Judgment is PLACED OFF CALENDAR.

ANALYSIS:

On January 24, 2019, Plaintiff State Farm Mutual Automobile Insurance Company (“Plaintiff”) filed the instant action for automobile subrogation against Defendant Manuel De La Cruz (“Defendant”). Following Defendant’s failure to respond, default was entered against him on July 23, 2019. Defendant filed the instant Motion to Set Aside Default on September 6, 2019. Additionally, the Motion was not brought pursuant to any legal authority “The memorandum must contain a statement of facts, a concise statement of the law, evidence and arguments relied on, and a discussion of the statutes, cases, and textbooks cited in support of the position advanced.” (Cal. Rules of Court, Rule 3.1113, subd. (b).)

The Motion initially came for hearing on September 19, 2019, at which time it was continued to allow service of the motion papers on Plaintiff and for Defendant to file and serve supplemental papers setting forth the legal basis of his request for relief. On the same date, Defendant filed and served a supplemental declaration setting forth additional facts in support of the Motion and attaching a copy of his Notice of Motion. However, the supplemental declaration still did not comply with Cal. Rules of Court, Rule 3.1113, subdivision (b) because it lacked supporting legal authority.

At the second hearing on November 4, 2019, the Court continued the matter to give Defendant one final opportunity to comply with the Court’s order. Specifically, the Court ordered Defendant to file and serve supplemental papers correcting the problems discussed above to at least 16 court days prior to the new hearing date. Defendant was again warned that failure to comply with the Court’s orders might result in the Motion being placed off calendar or denied.

To date, Defendant still has not filed supplemental papers in compliance with Cal. Rules of Court, Rule 3.111, subdivision (b). Indeed, no supplemental papers have been filed since the hearing on November 4, 2019. Based on the foregoing, the Defendant’s Motion to Vacate Default is PLACED OFF CALENDAR.

Moving party to give notice.

Case Number: 19STLC00849    Hearing Date: November 04, 2019    Dept: 94

State Farm v. De La Cruz, et al.

MOTION TO VACATE DEFAULT AND DEFAULT JUDGMENT

(CCP § 473(b))

TENTATIVE RULING:

Defendant Manuel De La Cruz’s Motion to Vacate Default and Default Judgment is PLACED OFF CALENDAR.

ANALYSIS:

On January 24, 2019, Plaintiff State Farm Mutual Automobile Insurance Company (“Plaintiff”) filed the instant action for automobile subrogation against Defendant Manuel De La Cruz (“Defendant”). Following Defendant’s failure to respond, default was entered against him on July 23, 2019. Defendant filed the instant Motion to Set Aside Default on September 6, 2019. Additionally, the Motion was not brought pursuant to any legal authority “The memorandum must contain a statement of facts, a concise statement of the law, evidence and arguments relied on, and a discussion of the statutes, cases, and textbooks cited in support of the position advanced.” (Cal. Rules of Court, Rule 3.1113, subd. (b).)

The Motion initially came for hearing on September 19, 2019, at which time it was continued to allow service of the motion papers on Plaintiff and for Defendant to file and serve supplemental papers setting forth the legal basis of his request for relief.

On September 19, 2019, Defendant filed a supplemental declaration setting forth additional facts in support of the Motion and attaching a copy of his Notice of Motion. The attached proof of service indicates the supplemental declaration was mail-served on Plaintiff on September 11, 2019. (Supp. De La Cruz Decl., Proof of Service.) However, the supplemental declaration still does not comply with Cal. Rules of Court, Rule 3.1113, subdivision (b) as it lacks any supporting legal authority. Defendant failed to comply with the Court’s order and was warned that failure to comply with the Court’s orders may result in the Motion being placed off calendar or denied.

Based on the foregoing, the Defendant’s Motion to Vacate Default is PLACED OFF CALENDAR.

Moving party to give notice.