On 12/11/2019 STEADFAST INSURANCE COMPANY filed a Personal Injury - Uninsured Motor Vehicle lawsuit against MAXIMO GOMEZ-FERNANDEZ. 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.
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12/11/2019
Pending - Other Pending
Los Angeles County Superior Courts
Spring Street Courthouse
Los Angeles, California
JAMES E. BLANCARTE
STEADFAST INSURANCE COMPANY
GOMEZ-FERNANDEZ MAXIMO
ISLAM MOHAMMAD
GOMEZ JOSE BOHERGES
ROSENBERG GARY
BECK DWAYNE S.
1/19/2021: Proof of Service by Substituted Service - Proof of Service by Substituted Service
11/17/2020: Summons - Summons on Complaint
11/17/2020: Demand for Jury Trial - Demand for Jury Trial
11/17/2020: Notice of Posting of Jury Fees - Notice of Posting of Jury Fees
11/10/2020: Minute Order - Minute Order (Hearing on Motion to Set Aside/Vacate Default and Default Jud...)
9/14/2020: Reply (name extension) - Reply BRIEF RE NON-OPPOSITION TO DEFENDANTS MOTION TO SET ASIDE DEFAULT AND/OR DEFAULT JUDGMENT
9/23/2020: Certificate of Mailing for - Certificate of Mailing for (Hearing on Motion to Set Aside/Vacate Default and Default Jud...) of 09/23/2020
7/8/2020: Certificate of Mailing for - Certificate of Mailing for (Court Order Re: Motion to Set Aside/Vacate Default and / or D...) of 07/08/2020
4/28/2020: Motion to Set Aside/Vacate Default and / or Default Judgment - Motion to Set Aside/Vacate Default and / or Default Judgment
2/24/2020: Statement of Damages (Personal Injury or Wrongful Death) - Statement of Damages (Personal Injury or Wrongful Death)
2/18/2020: Summons - Summons on Cross Complaint
2/18/2020: Notice of Posting of Jury Fees - Notice of Posting of Jury Fees
2/7/2020: Request for Entry of Default / Judgment - Request for Entry of Default / Judgment
2/7/2020: Proof of Personal Service - Proof of Personal Service
12/11/2019: Complaint - Complaint
12/11/2019: Summons - Summons on Complaint
12/11/2019: Notice of Case Assignment - Limited Civil Case - Notice of Case Assignment - Limited Civil Case
Hearing12/14/2022 at 08:30 AM in Department 25 at 312 North Spring Street, Los Angeles, CA 90012; Order to Show Cause Re: Failure to File Proof of Service
Hearing06/09/2021 at 08:30 AM in Department 25 at 312 North Spring Street, Los Angeles, CA 90012; Non-Jury Trial
DocketRequest for Entry of Default / Judgment; Filed by: Maximo Gomez-Fernandez (Cross-Complainant)
DocketNotice of Rejection Default/Clerk's Judgment; Filed by: Clerk
DocketProof of Service by Substituted Service; Filed by: Maximo Gomez-Fernandez (Cross-Complainant); As to: Mohammad Islam (Cross-Defendant); Proof of Mailing Date: 12/27/2020; Service Cost: 0.00; Service Cost Waived: No
DocketProof of Personal Service; Filed by: Maximo Gomez-Fernandez (Defendant); As to: Steadfast Insurance Company (Plaintiff); Service Date: 12/22/2020; Service Cost: 0.00; Service Cost Waived: No
DocketNotice of Posting of Jury Fees; Filed by: Maximo Gomez-Fernandez (Defendant)
DocketDemand for Jury Trial; Filed by: Maximo Gomez-Fernandez (Defendant)
DocketNotice of Ruling; Filed by: Maximo Gomez-Fernandez (Defendant)
DocketAnswer; Filed by: Maximo Gomez-Fernandez (Defendant); As to: Steadfast Insurance Company (Plaintiff)
DocketDefault entered as to Maximo Gomez-Fernandez; On the Complaint filed by Steadfast Insurance Company on 12/11/2019
DocketProof of Personal Service; Filed by: Steadfast Insurance Company (Plaintiff); As to: Maximo Gomez-Fernandez (Defendant); Service Date: 01/01/2020; Service Cost: 64.50; Service Cost Waived: No
DocketRequest for Entry of Default / Judgment; Filed by: Steadfast Insurance Company (Plaintiff); As to: Maximo Gomez-Fernandez (Defendant)
DocketNon-Jury Trial scheduled for 06/09/2021 at 08:30 AM in Stanley Mosk Courthouse at Department 94
DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 12/14/2022 at 08:30 AM in Stanley Mosk Courthouse at Department 94
DocketCase assigned to Hon. James E. Blancarte in Department 94 Stanley Mosk Courthouse
DocketComplaint; Filed by: Steadfast Insurance Company (Plaintiff); As to: Maximo Gomez-Fernandez (Defendant)
DocketSummons on Complaint; Issued and Filed by: Steadfast Insurance Company (Plaintiff); As to: Maximo Gomez-Fernandez (Defendant)
DocketCivil Case Cover Sheet; Filed by: Steadfast Insurance Company (Plaintiff); As to: Maximo Gomez-Fernandez (Defendant)
DocketNotice of Case Assignment - Limited Civil Case; Filed by: Clerk
Case Number: 19STLC11326 Hearing Date: November 10, 2020 Dept: 25
HEARING DATE: Tue., November 10, 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
NOTICE: OK DISC. MOT. C/O: 05-25-21
TRIAL DATE: 06-09-21
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 to Set Aside Entry of Default and Default Judgment is GRANTED. The default entered on February 7, 2020 is HEREBY VACATED. Proposed answer to be filed within ten (10) days 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 November 6, 2020 [ ] Late [X] None
REPLY: None filed as of November 6, 2020 [ ] Late [X] None
ANALYSIS:
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. The initial September 23, 2020 hearing was continued and Defendant was ordered to file additional papers in support of his Motion. (9/23/20 Minute Order.) Defendant filed a supplemental declaration on October 1, 2020.
To date, no opposition has been filed.
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.)
Defendant explains in his supplemental declaration that in December 2016, he was involved in a 4-vehicle automobile accident (the “Accident”). (10/1/20 Gomez-Fernandez Decl., ¶ 2.) One criminal lawsuit and three civil lawsuits resulting from the Accident were filed in 2017 and 2018. (Id. at ¶¶ 3-6.) The three civil lawsuits were settled in February 2019 through mediation. (Id. at ¶ 8.) Defendant also states that English is not his first language and that when he was served with the instant action in January 2020, he did not understand there were any remaining lawsuits against him stemming from the Accident. (Id. at ¶ 8.) As Defendant mistakenly believed all cases resulting from the Accident had been resolved, he did not notify his insurance carrier or attorney of the Complaint. (Id. at ¶ 9.)
Based on Defendant’s timely request to vacate the default supported by his declaration, the Motion is GRANTED.
Conclusion & Order
For the foregoing reasons, Defendant Maximo Gomez-Fernandez’s Motion to Set Aside Entry of Default and Default Judgment is GRANTED. The default entered on February 7, 2020 is HEREBY VACATED. Proposed answer to be filed within ten (10) days of this order.
Moving party is ordered to give notice.
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
NOTICE: OK DISC. MOT. C/O: 05-25-21
TRIAL DATE: 06-09-21
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:
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.
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.
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.
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