Filed 9/19/13 Turner v. Turner CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

LISA TURNER,
Plaintiff and Respondent,

v.
MARIAN TURNER,
Defendant and Respondent;

HARTFORD CASUALTY INSURANCE COMPANY,
Movant and Appellant. B241265
(Los Angeles County Super. Ct. No. BC463103)

APPEAL from an order of the Supe rior Court of Los Angeles County, Abraham A. Khan, Judge. Reversed. Smith Ellison, Michael W. Ellison an d Susan L. Goodkin for Movant and Appellant. Amy P. Lee for Plaintiff and Respondent. Gary A. Farwell for De fendant and Respondent.

_____________ ____________2 Hartford Casualty Insura nce Company (Hartford) appeals from the trial court’s order denying a motion to vacat e a $4.1 million stipulated ju dgment entered into between the injured party, Lisa Turner, and Hart ford’s insured, Lisa ’s mother Marian, 1 to resolve this personal injury action. (Code Civ. Proc., § 473, subd. (b).) 2 The $4.1 million stipulated judgment originally was part of the settlement entered into in the personal injury action Lisa filed against her mother a nd father, Hartford’s in sureds, in the United
States District Court. Over Hartford’s ob jections, the district court did not sign the judgment and later dismissed the action on jurisdictional grounds without prejudice to allow re-filing in state court. Within 30 days of re-filing th e personal injury action in state court, and before an answ er was due, Lisa filed an ex parte application for entry of the $4.1 million stipulated judg ment. Hartford had no notic e the personal injury action had been re-filed, the ex part e application had been filed, or the $4.1 million stipulated judgment had been entered against its insure d. We conclude the trial court erred in denying Hartford’s motion to v acate. Hartford established “surprise” as required under section 473, and there is insu fficient evidence to su pport the trial court’s conclusion that Hartford failed to accept the tendered defens e and was therefore pr ecluded from moving to vacate the judgment. Acco rdingly, we reverse.
FACTUAL AND PROCEDUR AL BACKGROUND In July 2008, Lisa suffered severe injuries when she fell through a glass shower door not made of tempered glass in a home owned by her parents (Marian and Cornelius) and her sister (Dorian). Hartford had i ssued a homeowner’s policy to Marian and
Cornelius.

1 Because some of the indivi duals in this case share the same surname, we use the first names for the sake of clarity . No disrespect is intended.

2 All further statutory references are to the Code of Civil Procedure.3 1. United States District Court Action

a. Lisa’s Personal Injury Action Against Insureds In July 2010, Lisa filed a personal injury action in the United States District Court against Cornelius, based upon diversity jurisdiction. 3 Hartford was notified and investigated the claim. On December 15, 20 10, Hartford agreed to provide Cornelius a defense, subject to a reservation of rights. On November 30, 2010, Lisa amended her complaint, adding as defendants
Marian and Dorian. Marian did not acknowledge receipt of the amended complaint until February 9, 2011.
b. Third Party Complain ts Against Hartford Cornelius filed a complaint in the district court action against Hartford and other entities, alleging numerous causes of action arising from the insurance claims handling and investigation into Lisa’s accident. Lisa and Marian, both represented by Lisa’s counsel in the personal injury action, also filed a third pa rty complaint against Hartford, essentially alleging the same causes of action.

c. Attempt to Enter $4.1 Million Stipulated Judgment
The Turners inform ed Hartford in February 20 11 that they had reached a settlement of the personal inju ry action on December 10, 2010 . As part of the settlement, Lisa and Marian agreed to the entry of a $4.1 million judgment against Marian.
Lisa submitted to the district court a “Stipulation for Entry of Judgment and Dismissal with Prejudice of Dori an Turner and Marian Turner.” Hartford objected to the stipulated judgment on several grounds. The district court dismissed Dorian with prejudice, but the court did not sign th e $4.1 million stipulated judgment.
d. Dismissal Without Prejudice of the Personal Injury Action
The district court issued two orders to s how cause regarding lack of jurisdiction of the third party complaints and the underlyi ng personal injury action. Based upon the realignment doctrine, the district court conc luded diversity had be en destroyed because

3 Cornelius is a resident of Mississippi.4 the Turners were aligned, and Hartford and the remaining third-party defendants were aligned. On May 19, 2011, the district court dismissed Lisa’s personal injury action without prejudice to re-file in state court. The district court also dismissed Cornelius’s complaint against Hartford without prejudice to re-file in state court and declined to exercise supplemental jurisdiction over the state law causes of action in Lisa’s and Marian’s complaint against Ha rtford, dismissing the state law causes of action without prejudice to re-file in state cour t. Lisa and Cornelius appealed. 4

2. State Court Action and Entry of the $4.1 Million Stipulat ed Judgment On June 20, 2011, Lisa re-filed her pers onal injury action against Marian in the Los Angeles Superior Court. The complaint a lleged essentially the same claims asserted
in the district court action. On July 19, 2011, before Marian would have been obligated to answer the complaint, Lisa filed an ex parte application seeking an order for entry of the $4.1 million stipulated judgment. The trial court ruled on the ex parte application and signed the judgment.
Hartford was not served with the complaint in the state c ourt action. Hartford also was not served with the ex pa rte application. Hartford received no notice that the judgment had been entered against its insured. On December 14, 2011, Hartford’s c ounsel wrote to Marian’s counsel upon discovering the $4.1 milli on stipulated judgment against its insured, seeking to confirm that Marian was not contending Hartford ha d any obligations with respect to the $4.1 million stipulated judgment. Ha rtford got no response before it filed its motion to vacate.
3. Hartford’s Motion to Vacate th e $4.1 Million Stip ulated Judgment
Hartford moved to vacate the $4.1 million stipulated judg ment against its insured pursuant to section 473, subdivision (b), “o n the grounds of mistake, inadvertence,

4 The Ninth Circuit appeal was still pendin g as of August 16, 2011, after entry of the $4.1 million stipulated judg ment in the state court action. The appeals have been dismissed.5 surprise or excusable neglect in that neither Marian Turner nor anyone else tendered this case to Hartford, an insurer of Ms. Turner, otherwise sought a defense from Hartford, informed Hartford of the app lication for the Stipulated Judgm ent or informed Hartford of entry of the Stipulated Judgment.” 5 In support of the motion, Hartford presented two declarations addressing whether
Marian had tendered the defense of the stat e court action. Atto rney Michael Ellison stated: “To the best of my knowledge, neither Marian Turner, counse l for Marian Turner, nor anyone else tendered this case to Hartfo rd.” Claims Servic e Consultant Alfonso Smith, who was assigned to the claim file, stat ed he had sent Marian a letter confirming
that Hartford intended to offer to defend her in the district court action. 6 But, Smith stated neither the “Turners nor anyone else in formed Hartford that they were seeking to obtain such a stipulated judgment in this action at any time.” Lisa, joined by Marian, opposed the motion to vacate. Citing Sunseri v. Camperos Del Valle Stables, Inc. (1986) 185 Cal.App.3d 559, Li sa principally contended a stipulated judgment between an insured and a plaintiff cannot be set aside under section 473, subdivision (b) when there is a failure to accept defense of the insured. Lisa argued
that Marian “did not fail to tender her defense [to] Hartford,” rather Hartford “failed to accept the defense.”

5 Hartford also moved to intervene. (See Western Heritage Ins. Co. v. Superior Court (2011) 199 Cal.App.4th 1196, 1210 [“An insurer can move to intervene prior to the entry of judgment.”].) Hartfo rd is not challenging on appeal the trial court’s order denying its motion to intervene.

6 The May 16, 2011 letter stat es: “Dear Mrs. Turner: [¶ ] The Hartford Casualty Insurance Company (‘Hartford ’) has appointed defense coun sel to represent you[r] husband, Cornelius Turner, in the subject litig ation. While there has never been any tender to us on your behalf, we have on prior occasions asked your husband’s personal counsel, Nina Ringgold, whether or not there was any request for Hartford to also defend you in this matter. . . . Our prior request s have gone unanswered, and we have since learned that you are not represented by coun sel in this litigation. We are writing you directly, as a Pro Se defendant, to inquire as to whether you wish us to defend you in the referenced [district court action] filed agains t you. Please advise us whether you would like Hartford to defend yo u in this litigation.”6 In support of her argument, Lisa subm itted Marian’s and her counsel’s (Amy P. Lee) declarations. Marian stated: “Hartf ord did not timely accept the tendered defense and I had a right to settle the case in the manner I deemed appropriate.” Lee stated:
“Marian Turner tendered her defense to Hart ford and Hartford di d not respond to her
tendered defense before settlement with Lisa Tu rner.” With respect to the Smith letter,
Lee stated: “Al Smith provided a letter to Ma rian Turner after co mplete resolution and settlement between the partie s acknowledging that Hartfo rd was aware that Marian
Turner had tendered her defense.” 7 Hartford objected to por tions of Lee’s declaration, and also objected to Marian’s untimely decl aration at the hearing on the motion.
4. Denial of Motion to Vacate and Hartford’s Appeal The trial court’s tentative ruling noted th e conflicting evidence, but for purposes of
the motion to vacate concluded “t he insurer denied the insured’s tender of a defense.” No evidence is cited in the tentative ruling. In response to the evid entiary objections, the court’s tentative ruling states: “The Cour t has considered the parties’ evidentiary objections, and makes its findi ngs based upon evidence de termined to survive the objections, including the declaration of [Marian] Turner filed 3/13/12.” After taking the

7 Lisa requests judicial notice of court reco rds in the district court and state court actions to challenge Hartford’s contention it was unaware of the entry of the $4.1 million stipulated judgment entered in the state court action and to su pport her position that Marian tendered her defense. Because three of the four doc uments were not presented to the trial court, we deny the request fo r judicial notice of these documents. ( Brosterhous v. State Bar (1995) 12 Cal.4th 315, 325- 326.) As for the fourth document, we also deny the request for judicial notice. The fourth document is a complete copy of the first amended complaint filed on behalf of Lisa a nd Marian against Hartford in state court, which is in the record. It a ppears, however, the request is to take judicial notice of the facts alleged. We may take judicial notice th at the first amended complaint was filed, but not of the factual allegations because such matters are reasonably su bject to dispute and therefore require formal proof. (See, e.g., Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App. 4th 875, 882.).7 matter under submission following oral argum ent on the motion, the trial court adopted its tentative ruling as its final order. Hartford timely appealed. 8

DISCUSSION
Hartford contends the trial court abused its discretion in denying its section 473 motion to set aside the $4.1 million stipulat ed judgment entered against its insured
because Hartford had no notic e of the state court procee dings and its insured never
tendered the defense of the state court action. The disposition of a section 473 motion “rests largely in the discretion of the trial c ourt, and its decision w ill not be disturbed on appeal unless there has been a clear abuse of discretion.” ( In re Marriage of Connolly (1979) 23 Cal.3d 590, 597-598.) Here, the tr ial court erred becaus e its conclusion that
Hartford denied Marian’s te ndered defense of this action is not supported by any
admissible evidence in the record. Section 473 permits the court to relieve a “party or his or her legal representative from a judgment . . . taken against him or he r through his or her mistake, inadvertence, surprise, or excusable neglect.” (§ 473, subd. (b), italics adde d.) “Legal representative” has been construed liberally and permits an in surer to move to set aside a judgment under section 473 that it might otherwise be required to satisfy. ( Eigner v. Worthington (1997) 57 Cal.App.4th 188, 196, fn. 5.) In denying the motion to vacate the stipul ated judgment, the trial court apparently relied on the legal principle articulated in Sunseri v. Camperos Del Valle Stables, Inc.
, supra , 185 Cal.App.3d 559, in whic h the court denied the section 473 motion to vacate a stipulated judgment because th e insured tendered the defense, but the insurer rejected the opportunity to defend. The in surer made a “conscious decision to reject the defense of the underlying action.” ( Sunseri v. Camperos Del Valle Stables, Inc.
, supra , at p. 561.) Therefore, there was no justification to set aside the stipulated judgment on the grounds of “ ‘mistake, inadvertence, surpri se or excusable neglect.’ ” ( Ibid. )

8 The denial of a section 473 motion to vaca te is appealable as a special order made after final judgment. (§ 904.1, subd. (a)(2); Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 1004, 1008.)8 Here, unlike Sunseri , there is no evidence Marian ev en tendered her defense of the
state court action that would ha ve triggered Hartford ’s duty to defend. Lisa and Marian
reached a settlement on December 10, 2010, while the district court action was pending, in which Lisa and Marian agreed to th e $4.1 million judgment against Marian. 9 Marian vaguely states that Hartford did not “timel y accept the tendered defense,” and therefore she had a right to settle “the case,” but th e settlement occurred before the state court action was even filed. Likewise, Lee’s declar ation, disregarding the viable foundational objections to its admissibility, chronologica lly places tender before the settlement reached in December 2010, and the settlement was reached six months before the state
court action was even filed. Relying on Lee’s decl aration, respondents 10 appear to contend that Smith’s letter acknowledged that Marian tendered her defens e of the state court action. The letter actually shows the opposite. Ha rtford offered to defend Ma rian in the district court action even though she had not tendered he r defense. As of May 2011, Marian was aware that Hartford would defend the personal injury action. The state court action was filed one month later, on June 20, 2011, ye t neither Marian’s nor Lee’s declaration specifically addresses Marian’s tender at an y time between June 20, 2011, the date of filing, and July 19, 2011, the date Lisa filed ex parte for en try of the $4.1 million stipulated judgment.

9 The allegations in the state court comp laint filed by Lisa and Marian against Hartford state: “After Hartford did not re spond to the tendered defense in October 2010, all insureds entered into binding agreements with LT [Lisa]. . . . Also, in order to resolve the underlying action, MT [Marian] agreed to assign certain claims and to an entry of judgment in the underlying action in the amou nt of $4,100,000.” The complaint further alleges “all insureds executed binding agre ements on December 10, 2010.” “The admission of fact in a pleading is a ‘judicial admission.’ ” ( Valerio v. Andrew Youngquist Construction (2002) 103 Cal.App.4th 1264, 1271.) A judicial admission “is a waiver of proof of a fact by conceding its truth, and it has the effect of removing the matter from the issues.” ( Ibid .)

10 We grant Marian’s joinder, and because Li sa’s and Marian’s positions are aligned, when appropriate we refer to them as “r espondents.” (Cal. Rules of Court, rule 8.200(a)(5).)9 Assuming Marian had tendered her defense, the declarations do not state that
Hartford declined the opportunity to provide a defense in the state court action. Instead,
the declarations state Hartford “did not timel y accept,” and “did not respond” to Marian’s tender. As noted, 29 days elapsed between re-filing the personal injury action in state court and the ex parte application to enter the $4.1 million stipulated judgment. As a matter of right, a defendant has 30 days af ter a summons is served to answer the complaint. (§ 412.20, subd. (a)(3).) Here, the court sign ed the judgment on the 30th day. Based upon this time frame, we conclude the evidence of any so-ca lled “delay,” does not support an inference that Hartfo rd implicitly denied a defense. We also reject respondents’ related ar gument that Hartford has not presented sufficient evidence of “surpris e” for relief from the $4.1 m illion stipulated judgment. Although Hartford was aware of the December 10, 2010 settlement, it was not aware that Lisa had re-filed her personal injury action in st ate court, or filed an ex parte application for entry of the $4.1 million stipulated judgment. Ther e is no conflicting evidence presented on these points. Th e record also reveals that, if given notice, Hartford would have objected to the entry of the $4.1 million judgment, havi ng done so in the district court action. And, if the defense of the state court action had be en tendered, based on inferences drawn from Smith’s letter, Hartford most likely would have agreed to offer Marian a defense, with a reservation of rights. Hartford argues that the “rush” to re-file Lisa’s personal injury action in state court and to seek an ex parte application to enter the $4.1 million s tipulated judgment, demonstrates fraud and collusion among the Turn ers because similar efforts failed in the
district court. A section 473 motion to vaca te is not a proper forum in which to litigate these issues. Here, we conclude the trial court abused its di scretion in denying Hartford’s motion to vacate the $4.1 m illion stipulated judgment.10 DISPOSITION The order denying the motion to vacate the $4.1 million stipulated judgment brought pursuant to Code of Civil Procedure section 473 is reversed. Marian Turner’s joinder request is granted. Respondents’ request for judicial notice is denied. Hartford is entitled to costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ALDRICH, J.

We concur:

CROSKEY, Acting P. J.

KITCHING, J.