On 07/18/2014 HADA RAMIREZ filed a Personal Injury - Other Personal Injury lawsuit against IGUANA'S BAR NIGHT CLUB. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is HOLLY J. FUJIE. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
HOLLY J. FUJIE
DOES 1 THROUGH 50
IGUANA'S BAR & NIGHT CLUB
CHANG GRACE LEA ESQ.
MATSON DONALD J. ESQ.
12/3/2015: PROOF OF SERVICE SUMMONS
2/2/2016: SUBSTITUTION OF ATTORNEY
2/22/2016: PROOF OF SERVICE
4/11/2016: Minute Order
10/11/2016: ORDER RE: PLAINTIFF'S REQUEST FOR DEFAULT JUDGMENT
11/1/2016: Minute Order
11/7/2016: REQUEST FOR ENTRY OF DEFAULT
11/28/2016: APPLICATION FOR ISSUANCE OF WRIT OF EXECUTION, POSSESSION OR SALE
11/28/2016: PROOF OF SERVICE BY FIRST-CLASS MAIL - CIVIL
2/8/2017: NOTICE OF MOTION AND MOTION TO AMEND JUDGMENT TO ADD NAME OF NANCY GUZMAN
3/13/2017: Minute Order
6/20/2017: NOTICE OF MOTION AND MOTION FOR LEAVE TO AMEND COMPLAINT
8/4/2017: FIRST AMENDED COMPLAINT 1. NEGLIGENCE - PREMISE LIABILITY; ETC
9/7/2017: PROOF OF SERVICE SUMMONS
9/7/2017: PROOF OF SERVICE SUMMONS
11/6/2017: REQUEST FOR ENTRY OF DEFAULT
Proof of Service (served on Iguana's Bar & Night Club; ) Filed by Attorney for Pltf/PetnrRead MoreRead Less
Substitution of Attorney Filed by Attorney for Plaintiff/PetitionerRead MoreRead Less
Statement of Damages Filed by Attorney for Plaintiff/PetitionerRead MoreRead Less
Proof of Service Filed by Attorney for Plaintiff/PetitionerRead MoreRead Less
Notice of Change of Address Filed by Attorney for Plaintiff/PetitionerRead MoreRead Less
ComplaintRead MoreRead Less
Case Number: BC551942 Hearing Date: November 19, 2019 Dept: 4B
[TENTATIVE] ORDER RE: MOTION TO SET ASIDE DEFAULT
On July 18, 2014, plaintiff Hada Ramirez (“Plaintiff”) filed this action against Iguanas Bar and Nightclub (“Iguanas”) (collectively, “Defendants”) for premises liability relating to a slip and fall at a bar operated by Iguanas. Plaintiff contends on November 21, 2015, Plaintiff served the complaint and a statement of damages on a cashier at Iguanas. Plaintiff obtained a default on April 7, 2016. Plaintiff’s counsel states that on November 30, 2016 her office received a phone call from a person at Iguanas about insurance coverage. Through 2016, Plaintiff sought to obtain a judgment and a writ of execution. Plaintiff’s counsel states on January 9, 2017, she received a call from Nancy Guzman about insurance.
In 2017, Plaintiff sought to amend the complaint to add Nancy Guzman as a defendant. On August 4, 2017, Plaintiff filed a First Amended Complaint naming Guzman as a defendant. Plaintiff’s counsel states Plaintiff served Guzman on August 30, 2017. On November 6, 2017, Plaintiff obtained entry of default against Defendants. On September 11, 2018, the Court entered a default judgment against Defendants. During these years, Plaintiff’s counsel states she served Defendants with the numerous court filings in 2016 and 2017.
Guzman claims she was not served personally and had no notice of the lawsuit until she received a notice of default judgement in September 2018. Unable to afford an attorney, Guzman hired a paralegal to file a motion for relief from default on March 3, 2019. The hearing on the motion was set for May 2, 2019. However, Guzman did not appear that day and did not inform the Court that she was submitting to the tentative decision that had been posted. Therefore, the Court took the motion off calendar. Guzman states she was intimidated by the prospect of appearing in court without an attorney due to her English language skills. Guzman eventually retained counsel on June 12, 2019. Guzman filed this motion to set aside default more than four months later on October 21, 2019. Guzman does not address Plaintiff’s counsel’s statements that her office spoke at least twice with Guzman or someone from Iguanas about insurance coverage in 2016 and 2017.
The court has broad discretion to vacate the entry of default, default judgment, or a dismissal where the moving party timely establishes a proper ground for relief. (Cruz v. Fagor America, Inc. (2007) 146 Cal.App.4th 488, 495.) Under Code of Civil Procedure, section 473, subdivision (b), “The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (Code Civ. Proc., § 473, subd. (b).)
Guzman argues that this motion is timely because default judgment was not entered until September 11, 2018 and the March 3, 2019 motion was timely filed within six months of September 11, 2018. However, where a party moves for discretionary relief, “[t]he general rule is that the six-month period within which to bring a motion to vacate under section 473 runs from the date of the default and not from the default judgment taken thereafter.” Rutan v. Summit Sports, Inc. (1985) 173 Cal.App.3d 965, 970; see also Pulte Homes Corp. v. Williams Mechanical, Inc. (2016) 2 Cal.App.5th 267, 273 [where motion for relief is filed more than six months after entry of default, court “could not set aside the default under Code of Civil Procedure section 473”].) “The reason for this rule is that vacation of the judgment alone ordinarily would constitute an idle act; if the judgment were vacated the default would remain intact and permit immediate entry of another judgment giving the plaintiff the relief to which his complaint entitles him.” (Rutan, supra, 173 Cal.App.3d at p. 970; see also Pulte Homes, supra, 2 Cal.App.5th at p. 273 [“[B]ecause [the trial court] could not set aside the default, it also could not set aside the default judgment”].) “[A] court has no authority under section 473, subdivision (b), to excuse a party's noncompliance with the six-month time limit.” (Arambula v. Union Carbide Corp. (2005) 128 Cal. App. 4th 333, 345.)
Here, default was entered against Guzman on November 6, 2017. The six-month deadline to bring a motion under section 473 had long expired before Guzman filed the first motion on March 3, 2019. Guzman does not contend she is entitled to equitable relief due to extrinsic fraud. Accordingly, Defendants’ motion is DENIED.
Moving party to give notice.
Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT4B@lacourt.org indicating intention to submit on the tentative.
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