2017-00208227-CU-PA

Ludy Garrucho vs. Lina Vo

Nature of Proceeding: Motion to Set Aside Default Judgment

Filed By: Talmachoff, Mary K.

Defendant Lino Vo’s Motion to Set Aside Entry of Default is GRANTED.

This motion was continued following oral argument on December 19, 2017, for the filing of plaintiff’s declaration and any objection thereto. The Court has received and considered both parties’ papers.

This action arises from a motor vehicle accident that occurred on Dec. 28, 2016, in the City of Elk Grove. Plaintiff alleges that she sustained personal injuries and that her vehicle was severely damaged as the result of the negligent operation of the defendant’s vehicle.

C.C.P. section 473 is often applied liberally where the party in default moves promptly to seek relief, and the party opposing the motion will not suffer prejudice if relief is granted. In such situations “very slight evidence will be required to justify a court in setting aside the default.” Because the law strongly favors trial and disposition on the merits, any doubts in applying section 473 must be resolved in favor of the party seeking relief from default. Elston v. City of Turlock (1985) 38 Cal.3d 227, 233.

Moving party’s declaration is supported by her attorney’s request for discretionary relief under C.C.P., sec. 473. On Dec. 28, 2017, defendant also filed the Declaration of Lina Vo, in which she declares, inter alia, that she did not know that or understand that she had been substitute served with this civil suit and has never seen the letter from the plaintiff’s attorney dated April 24, 2017. Had she known that she had been served with the summons and complaint at any time before Sept. 2017, she would have immediately contacted her insurance carrier so they could assign defense counsel to represent her.

Plaintiff was substitute served defendant by service on her parents on March 1, 2017.

Her father advised the process server that defendant was away at college in Goleta.

Counsel declares that no responsive pleading was timely filed as defendant did not understand that the paperwork her father received was a summons and complaint which required a timely response. Although correspondence was sent to defendant at her parents address on April 24, 2017 advising that suit had been filed and default would be entered, defendant denies knowledge of that letter.

Default was entered on June 3, 2017. No judgment has been entered to date.

On Sept. 20, 2017, defendant’s insurer Progressive received notice of the auto accident which involved their insured. The letter demanded the policy limits by October 5, 2017.

On Sept. 27, 2017, Progressive became aware that default had been entered and retained counsel on October 4, 2017 to defend their insured.

On Oct. 13, 2017, written discovery was served by plaintiff on the defense, together with a notice of taking defendant’s deposition, despite the entry of default

Multiple requests by counsel for the defense to plaintiff’s counsel set aside the entry of default, have not been agreed to absent defendant providing a declaration under penalty of perjury as to the identity of the driver of the vehicle on the day of the accident.

In opposition, the plaintiff asserts that the defendant was avoiding service, and has been criminally charged for hit and run. The Jan. 4, 2018 Response to the Vo Declaration itemizes multiple contacts by defense counsel and the police with defendant. However, no showing of any prejudice to the plaintiff from setting aside the default has been made.

The plaintiff asserts that the default should not be set aside in the absence of a declaration from the defendant herself. However, Vo has now provided such a declaration.

This court cannot conclude that knowledge of criminal investigation and the filing of criminal charges against the defendant show deliberate avoidance or inexcusable neglect by the defendant in responding to the civil action. Any doubts in applying section 473, must be resolved in favor of the party seeking relief.

The request for imposition of sanctions is DENIED.

The entry of Default is therefore VACATED. Defendant shall file and serve her Answer to the Complaint not later than Monday, January 22, 2018