This case was last updated from Los Angeles County Superior Courts on 06/10/2019 at 07:44:51 (UTC).

KAILEE STEWARD VS CLAY ANDERSON ET AL

Case Summary

On 04/10/2017 KAILEE STEWARD filed a Personal Injury - Motor Vehicle lawsuit against CLAY ANDERSON. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is JON R. TAKASUGI. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****7018

  • Filing Date:

    04/10/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Motor Vehicle

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

JON R. TAKASUGI

 

Party Details

Plaintiff and Petitioner

STEWARD KAILEE

Defendants and Respondents

ANDERSON WILLIAM

ANDERSON CLAY

DOES 1 TO 10

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

NOVAK SEAN M. ESQ.

NOVAK SEAN MICHAEL

Defendant and Respondent Attorneys

VLAD CHENCIU

CHENCIU VLAD

 

Court Documents

Minute Order

9/24/2018: Minute Order

ORDER AND STIPULATION TO CONTINUE TRIAL FSC AND RELATED MOTION DISCOVERY DATES PERSONAL INJURY COURTS ONLY CENTRAL DISTRICT

9/24/2018: ORDER AND STIPULATION TO CONTINUE TRIAL FSC AND RELATED MOTION DISCOVERY DATES PERSONAL INJURY COURTS ONLY CENTRAL DISTRICT

Stipulation to Continue Trial/FSC [and Related Motion/Discovery Dates] Personal Injury Courts Only (Department 91, 92, 93, 97)

12/21/2018: Stipulation to Continue Trial/FSC [and Related Motion/Discovery Dates] Personal Injury Courts Only (Department 91, 92, 93, 97)

Minute Order

3/14/2019: Minute Order

Minute Order

3/20/2019: Minute Order

Order

3/20/2019: Order

Notice

3/20/2019: Notice

Ex Parte Application

3/20/2019: Ex Parte Application

Notice of Settlement

5/16/2019: Notice of Settlement

Notice

5/16/2019: Notice

SUMMONS

4/10/2017: SUMMONS

PROOF OF SERVICE OF SUMMONS

5/15/2017: PROOF OF SERVICE OF SUMMONS

PROOF OF SERVICE OF SUMMONS

5/15/2017: PROOF OF SERVICE OF SUMMONS

PROOF OF SERVICE SUMMONS

6/7/2017: PROOF OF SERVICE SUMMONS

PROOF OF SERVICE SUMMONS

6/7/2017: PROOF OF SERVICE SUMMONS

DEMAND FOR JURY

8/16/2017: DEMAND FOR JURY

Unknown

8/16/2017: Unknown

ANSWER TO COMPLAINT

8/16/2017: ANSWER TO COMPLAINT

9 More Documents Available

 

Docket Entries

  • 05/31/2019
  • at 08:30 AM in Department 3, Jon R. Takasugi, Presiding; Jury Trial - Not Held - Advanced and Vacated

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  • 05/16/2019
  • at 10:00 AM in Department 3, Jon R. Takasugi, Presiding; Final Status Conference - Not Held - Taken Off Calendar by Court

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  • 05/16/2019
  • Minute Order ( (Final Status Conference)); Filed by Clerk

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  • 05/16/2019
  • PLAINTIFF'S NOTICE OF OSC RE DEFAULT AND DISMISSAL; Filed by Kailee Steward (Plaintiff)

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  • 05/16/2019
  • Notice of Settlement; Filed by Kailee Steward (Plaintiff)

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  • 04/29/2019
  • Request for Entry of Default / Judgment; Filed by Kailee Steward (Plaintiff)

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  • 03/26/2019
  • at 08:30 AM in Department 3, Jon R. Takasugi, Presiding; Jury Trial - Not Held - Advanced and Continued - by Court

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  • 03/20/2019
  • at 10:00 AM in Department 3, Jon R. Takasugi, Presiding; Final Status Conference - Not Held - Advanced and Continued - by Court

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  • 03/20/2019
  • at 08:30 AM in Department 3, Jon R. Takasugi, Presiding; Hearing on Ex Parte Application (to continue trial) - Held - Motion Granted

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  • 03/20/2019
  • Ex Parte Application (NOTICE OF EX PARTE APPLICATION; EX PARTE APPLICATION TO CONTINUE TRIAL; DECLARATION OF LLOYD BUCKLEY, ESQ.; [PROPOSED] ORDER ON EX PARTE APPLICATION TO CONTINUE TRIAL DATE); Filed by Kailee Steward (Plaintiff)

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20 More Docket Entries
  • 06/07/2017
  • Proof of Service (not Summons and Complaint); Filed by Kailee Steward (Plaintiff)

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  • 06/07/2017
  • Proof of Service (not Summons and Complaint); Filed by Kailee Steward (Plaintiff)

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  • 06/07/2017
  • PROOF OF SERVICE SUMMONS

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  • 05/15/2017
  • PROOF OF SERVICE OF SUMMONS

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  • 05/15/2017
  • Proof-Service/Summons; Filed by Kailee Steward (Plaintiff)

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  • 05/15/2017
  • Proof-Service/Summons; Filed by Kailee Steward (Plaintiff)

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  • 05/15/2017
  • PROOF OF SERVICE OF SUMMONS

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  • 04/10/2017
  • SUMMONS

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  • 04/10/2017
  • PLAINTIFF'S COMPLAINT FOR DAMAGES FOR 1) MOTOR VEHICLE NEGLIGENCE; AND ETC

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  • 04/10/2017
  • Complaint; Filed by Kailee Steward (Plaintiff)

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Tentative Rulings

Case Number: BC657018    Hearing Date: November 08, 2019    Dept: 3

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

KAILEE STEWARD,

Plaintiff(s),

vs.

CLAY ANDERSON, ET AL.,

Defendant(s).

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CASE NO: BC657018

[TENTATIVE] ORDER GRANTING MOTION TO VACATE DEFAULT

Dept. 3

1:30 p.m.

November 8, 2019

1. Background Facts

Plaintiff, Kailee Steward filed this action against Defendants, Clay Anderson and William Anderson for damages arising out of an automobile accident.  Plaintiff filed the action on 4/10/17.  She filed proof of service of the summons, complaint, and related papers on each of the two defendants on 6/07/17.  Each POS indicates a registered process server served the two defendants via substitute service on a John Doe co-occupant on 6/05/17, with the papers mailed the same day.  Each POS includes the required declaration of diligence.

On 8/16/17, William Anderson filed an answer to the complaint.  The parties entered into numerous stipulations to continue the trial date, but there was no other activity in the case. 

On 4/29/19, at Plaintiff’s request, the Clerk entered Clay Anderson’s default.  On 5/16/19, Plaintiff filed a Notice of Settlement with William Anderson; the Notice made clear that the settlement was with William only, and not with Clay.

2. History of Motion to Vacate Default

On 7/09/19, Clay filed this motion to vacate the default entered against him.  The Court was originally scheduled to hear the motion on 8/26/19.  The Court continued the hearing to 10/09/19, and then again continued the hearing to 11/08/19. 

a. Void Default

The Court, in connection with its original 8/26/19 tentative ruling, provided the following discussion concerning Defendant’s contention that the default is void:

Defendant’s points and authorities also argue that the default is void, as service was improper; the notice of motion, however, only indicates the motion is brought pursuant to CCP §473.5, and does not mention void default or improper service. 

In Luri v. Greenwald (2003) 107 Cal.App.4th 1119, the plaintiff made a motion for relief under the excusable neglect (discretionary) provision of §473.  The motion included an attorney affidavit of fault, but neither the notice of motion nor the points and authorities mentioned the mandatory provision of §473.  The appellate court considered an argument, made on appeal, that the trial court should have considered the motion using the mandatory relief standard due to the inclusion of the attorney affidavit of fault.  The court of appeals held (citations omitted):

Luri's argument that whenever a motion under section 473 includes a declaration by an attorney suggesting attorney fault, the trial court should consider granting relief under both the discretionary and mandatory provisions of the statute, is not consistent with procedural rules governing motions.  A basic principle of motion practice is that the moving party must specify for the court and the opposing party the grounds upon which that party seeks relief. Code of Civil Procedure section 1010 requires that a notice of motion must state "the grounds upon which it will be made." California Rules of Court, rule 311 requires a notice of motion to state in its opening paragraph "the nature of the order being sought and the grounds for issuance of the order." As a general rule, the trial court may consider only the grounds stated in the notice of motion. (citations)  An omission in the notice may be overlooked if the supporting papers make clear the grounds for the relief sought. (citations) The purpose of these requirements is to cause the moving party to "sufficiently define the issues for the information and attention of the adverse party and the court." (citations).

In this case, because the notice of motion seeks relief solely pursuant to CCP §473.5, the Court will consider only whether Defendant is entitled to relief under that section.

Defendant, in his supplemental papers, continues to argue that the default is void because he did not live at the address where he was purportedly served.  The Court continues to find Defendant did not notice the motion on this ground, and the Court cannot rule on this ground. 

b. CCP §473.5

The Court, in connection with its original tentative ruling concerning the merits of the motion, provided the following discussion:

CCP §473.5 provides:

(a) When service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action. The notice of motion shall be served and filed within a reasonable time, but in no event exceeding the earlier of: (i) two years after entry of a default judgment against him or her; or (ii) 180 days after service on him or her of a written notice that the default or default judgment has been entered.

(b) A notice of motion to set aside a default or default judgment and for leave to defend the action shall designate as the time for making the motion a date prescribed by subdivision (b) of Section 1005, and it shall be accompanied by an affidavit showing under oath that the party's lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect. The party shall serve and file with the notice a copy of the answer, motion, or other pleading proposed to be filed in the action.

(c) Upon a finding by the court that the motion was made within the period permitted by subdivision (a) and that his or her lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect, it may set aside the default or default judgment on whatever terms as may be just and allow the party to defend the action.

Plaintiff correctly notes in opposition to the motion that Defendant’s declaration in support of the motion is insufficient to meet the standard above.  Defendant declares he deployed oversees as a member of the military “sometime in June, 2017.”  He declares he “never resided” at the address where he was served.  Finally he declares, “upon my return from deployment, and by the time I learned about this pending lawsuit against me potentially requiring me to make an appearance in this action upon proper service, a default was entered against me.” 

As discussed above, a motion under §473.5 is premised on the assumption that the service itself was proper, but did not result in actual notice.  Thus, for purposes of this motion, the Court assumes that substitute service at the subject address was proper.  The issue is whether it resulted in actual notice.  Plaintiff provides evidence that there were extensive negotiations with Defendants’ insurance carrier, which could and should have prompted an attempt to communicate with Defendant. 

More importantly, Defendant’s declaration is devoid of details concerning when he returned from overseas service and when he learned of the lawsuit filed against him.  The lawsuit was pending from April of 2017 until the default was ultimately entered in April of 2019.  Defendant could have filed an answer anytime during those two years.  Per §473.5(b) and (c), the Court can only grant this motion if it finds the failure to answer the complaint was not due to Defendant’s inexcusable neglect.  Without information about how long Defendant was back in the United States and when he learned of the lawsuit, the Court cannot make this finding.  Additionally, the Court cannot ignore the obvious fact that William and Clay Anderson are likely related, as they share a last name, involvement in an accident, and service address.  The Court would need information about the two parties’ relationship and conversations pertaining to this lawsuit before the Court could find failure to answer was not due to inexcusable neglect. 

c. Additional Evidence and Briefing

Defendant, on 9/27/19, provided his own supplemental declaration, as well as the supplemental declaration of Robin Andrews, the staff claims adjuster at Allstate.  The copy of Defendant’s declaration in the Court’s file is not signed by Defendant.  The Court asks that Defendant bring a signed copy of the declaration to the hearing.

Defendant’s unsigned declaration explains that Defendant was enlisted and on active duty from 7/27/15 to 2/22/19.  He joined the navy on 7/27/15.  He was in basic training in Illinois from 7/27/15 to 9/18/15.  Upon completion, he went to Florida for six weeks.  After the six weeks were up, he deployed on a naval ship whose home port was San Diego.  He was on the ship in San Diego until 7/07/17, at which time he deployed to the Persian Gulf, where he was from 7/07/17 to 2/02/18.  On 2/02/18, he returned to San Diego.   He separated from the Navy on 2/22/19, at which time he went to Nashville to live with his parents. 

Defendant declares he had limited access to cell phone and e-mail while deployed, and he did not know of the lawsuit filed against him.  He declares he learned, in February of 2019, that Plaintiff was seeking money to pay her medical bills from the accident, but he did not know there was a lawsuit.  He declares he first learned of the lawsuit when his attorney called him in May of 2019, and he has never heard of the address where he was purportedly served. 

Andrews declares she was assigned the defense of this lawsuit in July of 2017, at which time she called William Anderson.  William advised that he lived in Tennessee and had lived there for more than a year.  William told her his son was deployed overseas and had not been served with a lawsuit.  William authorized Allstate to answer the complaint on his behalf.  Andrews turned over the claims against William to Allstate.  She did not have any other information about Clay until May of 2019, when she learned Plaintiff had taken Clay’s default.

d. Additional Analysis

The Court continues to find Defendant’s evidence troubling and frustrating.  Again, as noted above, the issue is whether service of the summons and complaint resulted in actual notice; the Court presumes there was service, because the motion is made only on CCP §473.5 grounds.

There is no declaration from Clay’s parents stating that they never told Clay about the lawsuit.  Every document concerning the lawsuit includes Clay’s name.  There is a proof of service on Clay on file from 6/07/17, which William, Andrews, and/or Defense Counsel could have discovered.  Clay vaguely references complicated family relationships in the reply papers, but there is no evidence of a “complicated” family relationship and, on the contrary, the evidence is that Clay returned to live with his parents upon separation from the military.

Despite the foregoing, the Court is satisfied that Clay was in the military at all times relevant to the lawsuit.  In light of the very strong policy in favor of resolution of matters on their merits, the Court is inclined to grant the motion to vacate the default against Clay. 

The Court notes that Plaintiff, in her supplemental opposition papers, asks for sanctions in the event the motion is granted.  Plaintiff relies on §473(c) in support of the request.  The motion, however, is made per §473.5, not §473.  There is no sanctions provision in §473.5, and therefore no sanctions are imposed.

The motion is granted.  Clay is ordered to file a separate copy of his answer, which was attached as an exhibit to his original moving papers, within ten days. 

The Court vacates the 11/08/19 OSC re: dismissal.  The Court sets a trial date one year out, for Friday, 11/06/20 at 8:30 a.m. in Department 3 of the Spring Street Courthouse.  The Court sets an FSC for Friday, 10/23/20 at 10:00 a.m. in Department 3. 

Moving Defendant is ordered to give notice.

 

Parties who intend to submit on this tentative must send an email to the court at sscdept3@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.