2012-00136171-CU-PA

Maria Velazquez vs. Gregory Purcell

Nature of Proceeding: Motion to Set Aside

Filed By: Alley, Ryan W.

Defendant’s Request to Set Aside Entry of Default is unopposed and is GRANTED.

The plaintiff’s complaint filed with the Court on Nov. 29, 2012 is for damages for
personal injuries (motor vehicle). However, the charging document in the Court’s file is
missing page five of six pages. (The pages the Court has only refer to property
damage resulting from the auto accident.)

Moving party Gregory Purcell declares that he was personally served with process (but
no Statement of Damages) on April 11, 2013.

On April 13, 2013, Gregory personally delivered the summons and complaint to his
insurance agent, Bob Smith for State Farm. Smith told plaintiff that Smith would
forward the summons and complaint to State Farm for handling. Gregory relied upon
State Farm to do so.

No responsive pleading was filed on defendants’ behalf by State Farm.

On June 5, 2013 the plaintiffs requested Entry of Default by the Clerk. Default was
entered as requested by plaintiffs, without the specification of any sum certain sought.

The Court file does not contain a Statement of Damages, nor proof of service of the
Statement of Damages on the defendants. Procedural due process requires that a
defaulting defendant be advised of the amount of a judgment that may be entered if he
defaults. Since no statement of damages setting forth such amount was ever served
on defendant, any judgment entered would violate defendant’s due process rights and
would be void. See Becker v. S.P.V. Construction Co. Inc. (1980) 27 Cal.3d. 489.

Defense counsel for State Farm requested that plaintiffs set aside the entry of default,
but plaintiffs’ counsel replied that he did not have the authority to do so.

As in Fasuyi v. Permatex, Inc. (2008) 167 Cal. App. 4th 681, 701 defendants have
shown diligence in forwarding the summons and complaint to their insurer, and their
reliance on State Farm to provide a defense was appropriate. This is an appropriate
circumstance from relief under C.C.P., sec. 473(b).

As no opposition has been filed and no prejudice to plaintiffs shown, the motion to set
aside is granted. The Entry of Default is ordered VACATED. Defendant shall file and
serve his Answer to the Complaint not later than Monday, Dec. 2, 2013.

This minute order is effective immediately. No formal order nor further notice is
required, the tentative ruling providing sufficient notice.