STEADFAST INSURANCE COMPANY VS MAXIMO GOMEZ-FERNANDEZ

Tentative Rulings

Case Number: 19STLC11326    Hearing Date: September 23, 2020    Dept: 25

HEARING DATE:   Wed., September 23, 2020 JUDGE /DEPT: Blancarte/25

CASE NAME: Steadfast Ins. Co. v. Gomez Fernandez COMPL. FILED: 12-11-19

CASE NUMBER: 19STLC11326 DISC. C/O: 05-10-21

PROCEEDINGS:     MOTION TO SET ASIDE ENTRY OF DEFAULT AND DEFAULT JUDGMENT

MOVING PARTY:   Defendant Maximo Gomez-Fernandez

RESP. PARTY: None

MOTION TO SET ASIDE DEFAULT AND DEFAULT JUDGMENT

(CCP § 473(b))

TENTATIVE RULING:

Defendant Maximo Gomez-Fernandez’s Motion is CONTINUED TO NOV 10, 2020 at 10:00 a.m. in Department 25 at the SPRING STREET COURTHOUSE. At least 16 court days before the next scheduled hearing, Defendant must file and serve supplemental papers addressing the deficiencies identified herein. Failure to do so may result in the Motion being placed off calendar or 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: None filed as of September 21, 2020  [   ] Late [   ] None

REPLY: None filed as of September 21, 2020  [   ] Late [   ] None

ANALYSIS:

1. Background

On December 11, 2019, Plaintiff Steadfast Insurance Company (“Plaintiff”) filed an action against Maximo Gomez-Fernandez (“Defendant”). Following Defendant’s failure to respond to the Complaint, default was entered against him on February 7, 2020. Default judgment has not yet been entered.

On February 18, 2020, Defendant filed an Answer and a Cross-Complaint against Jorge Boherges Gomez and Mohammad Islam for indemnification and apportionment of fault.

Defendant filed the instant Motion to Set Aside Entry of Default and Default Judgment (the “Motion”) on April 28, 2020. To date, no opposition has been filed.

1. Legal Standard & Discussion

Defendant timely seeks relief from default pursuant to Code of Civil Procedure section 473, subdivision (b) and the Court’s equitable powers. (Mot., p. 5:4-5.) 

Under Code of Civil Procedure section 473, subdivision (b), an application for relief must be made no more than six months after entry of the judgment, dismissal, order or other proceeding 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.) (Italics added.) In addition, “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.)

Here, Defendant argues the default entered against him should be set aside because Plaintiff failed to provide any notice or courtesy copy of the Complaint to Ocean Harbor Insurance Company, Defendant’s insurer, or to AFA Claims Services, the claims administrator for Defendant’s insurer. (Mot., p. 8:10-17.) Defendant provides a declaration from Cecilia Rodriguez (“Rodriguez”), a claims representative for AFA Claims Services. (Mot., Rodriguez Decl., ¶ 1.) Rodriguez explains that AFA Claims Services and Latitude Subrogation Services and York Insurance Services, the third-party administrators for Plaintiff, communicated between December 2017 through August 2019. (Id. at ¶¶ 5-6.) On August 9, 2019, Plaintiff’s third-party administrators provided AFA Claims Services with a subrogation demand. (Id.) She also states that on December 11, 2019, Plaintiff filed its Complaint without advising AFA Claims Services before doing so. (Id. at ¶ 8.)

Defendant also provides the declaration of his counsel, Dwayne S. Beck (“Counsel”). Therein he reiterates that Plaintiff failed to provide any courtesy notice to AFA Claims Services that a lawsuit was filed against Defendant. (Mot., Beck Decl., ¶¶ 4, 12.) However, the cases cited by Defendant do not demonstrate that failure to provide courtesy notice to a defendant’s insurer warrants relief from default pursuant to Section 473, subdivision (b) or the Court’s equitable powers. Defendant relies on Lieberman v. Aetna Insurance Co. (1967) 249 Cal.App.2d 515, for the proposition that failure to give notice to an insurance carrier not a party to the action warrants relief. (Mot., p. 9:3-21.) However, Lieberman is distinguishable as in that case the insurance carrier itself was sued after a default judgment was obtained against its insured. (Lieberman v. Aetna Insurance Co. (1967) 249 Cal.App.2d 515, 519.) The Court also notes that Plaintiff’s August 9, 2019 subrogation demand specifically warned, “[i]f we do not hear from you and establish resolution of this matter within 15 days then our file will be prepared for arbitration or suit.” (Mot., Rodriguez Decl., ¶ 6, Exh. C.) Defendant does not argue AFA Claims Services responded to the letter within 15 days. Thus, Defendant’s argument that this action was filed without notice or warning is unpersuasive.

Furthermore, as Counsel was retained by Defendant’s insurer to represent Defendant after default was entered, his affidavit of fault is insufficient. (See Rogalski v. Nabers Cadillac, supra, 11 Cal.App.4th 816, 821, fn. 5; see also Cisneros v. Vueve (1995) 37 Cal.App.4th 906, 912, fn. 4.) Instead, Defendant’s own declaration explaining his mistake, surprise, inadvertence, or excusable neglect is necessary to satisfy the requirements of Section 473, subdivision (b).

Thus, Defendant is ordered to provide supplemental papers addressing the deficiencies identified herein at least 16 court days before the next scheduled hearing.

1. Conclusion & Order

For the foregoing reasons, Defendant Maximo Gomez-Fernandez’s Motion is CONTINUED TO NOV 10, 2020 at 10:00 a.m. in Department 25 at the SPRING STREET COURTHOUSE. At least 16 court days before the next scheduled hearing, Defendant must file and serve supplemental papers addressing the deficiencies identified herein. Failure to do so may result in the Motion being placed off calendar or denied.

Moving party is ordered to give notice.