Filed 9/3/24 Sandoval v. Barajas CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

JAMIE SANDOVAL,

Plaintiff and Appellant,

v.

RAMIRO PADILLA BARAJAS,

Defendant and Respondent.

 B326203

 (Los Angeles County

 Super. Ct. No. BC691447)

APPEAL from an order of the Superior Court of 

Los Angeles County, Upinder S. Kalra, Judge. Reversed.

Law Offices of Farrah Mirabel and Farrah Mirabel for 

Plaintiff and Appellant.

Toschi, Collins, Doyle & Houvener and Meredith C. Doyle, 

for Defendant and Respondent.

________________________
2

Plaintiff and appellant Jamie Sandoval appeals from an 

order setting aside a default judgment and underlying entry of 

default he obtained against defendant and respondent Ramiro 

Padilla Barajas in a lawsuit regarding an automobile collision 

between the parties. We conclude the trial court abused its 

discretion in concluding that Barajas’s reasonable reliance on 

his insurer to address the default was sufficient to establish the 

diligence case law requires in order to set aside a default on the 

grounds of extrinsic mistake. Barajas did not provide any basis 

on which the trial court could conclude his insurer had been 

diligent in seeking to address the default once discovered—

indeed, the trial court found the insurer had acted unreasonably. 

Particularly given the substantial prejudice to Sandoval from 

setting aside a years-old judgment, and the resulting heightened 

level of diligence Barajas needed to show to justify setting it aside 

on equitable grounds, the court abused its discretion in granting 

Barajas’s motion to set aside. Accordingly, we reverse. 

FACTS AND PROCEEDINGS BELOW

A. Proof of Service of Complaint and Summons

On January 25, 2018, Sandoval filed suit against Barajas 

alleging Barajas was at fault in their March 19, 2016 automobile 

collision in which Barajas’s vehicle drove into Sandoval’s vehicle.

On March 7, 2018, Sandoval filed a proof of service of 

the summons and complaint. A professional process server 

declared that he had served Barajas by substituted service. 

Specifically, he declared that he had made four unsuccessful 

attempts to personally serve Barajas at 15040 Parthenia Street, 

Apartment 33 in the city of North Hills, Barajas’s residence 

at the time, over the course of a week in February 2018. The 
3

declaration described how, having failed in these attempts, 

on February 24, 2018 at 10:00 a.m., the process server left the 

summons and complaint with “Maria ‘Doe,’ co-occupant (refused 

last name)” and mailed copies of the documents to Barajas’s 

residence as well. (Capitalization omitted.)

B. Default and Default Judgment

On May 3, 2018, Sandoval filed a request for entry of 

default. The request form included a declaration of Sandoval’s 

counsel that, on April 30, 2018, “a copy of [the] request . . . 

was mailed . . . to . . . [Barajas’s] last known address,” identified 

as the Parthenia Street apartment. On May 3, 2018 the court 

entered default as requested. On August 16, 2018, Sandoval 

filed a request for default judgment, which the trial court granted 

and entered on the same day. The court issued an abstract 

of judgment on March 4, 2019. Sandoval’s counsel declared 

that he mailed it to Barajas at the Parthenia Street apartment, 

as well as to Barajas’s then-current insurance carrier.

C. Motion to Set Aside

On July 1, 2022, Barajas filed a motion that, in substance, 

sought to set aside the entry of default and default judgment.

1

He supported his motion with declarations, including his own.

1 Barajas’s motion to set aside does not expressly seek to 

set aside the entry of default. It is instead captioned as a “motion 

to set aside default judgment and quash service of summons.” 

(Boldface & capitalization omitted.) Both below and on appeal, 

however, the parties treat the motion as one that, in substance, 

sought to set aside both the entry of default and the default 

judgment. For example, although the motion’s prayer for relief 

does not expressly request that the default be set aside, it 
4

1. Barajas declaration

The Barajas declaration describes the incident as “a motor 

vehicle accident on March 19, 2016 on eastbound Van Nuys 

Boulevard near the intersection of Canterbury Avenue in the 

City of Arleta in which . . . Sandoval . . . negligently made a 

U-turn in his 2012 Dodge Caliber in front of my 2013 Dodge 

Charger and then veered into a parked vehicle.” Barajas 

declared “[o]n information and belief,” that Sandoval “was at 

fault for the incident and his insurance carrier accepted liability.”

As to service, Barajas declared that he had not received the 

summons or complaint, and that he “was not aware until recently 

of any alleged substituted service via [his] wife Maria Perez, 

which [he] dispute[d].” Barajas declared that he first learned 

includes a request that the court permit Barajas to file an 

answer, which would only be possible if the court also set 

aside the default. The court appears to have shared this

understanding; its order on the motion grants the “motion to

set aside/vacate default and default judgment . . . and quash 

service of summons.” (Capitalization omitted & italics added.) 

The court’s tentative ruling, which was ultimately adopted 

and incorporated into the order, refers to a “motion to set 

aside/vacate default” (capitalization omitted), and the court’s 

order also required Barajas to “file a separate answer within 

10 days.” (Capitalization omitted.) Because the motion appears 

to have been one that, in substance, the court and the parties 

understood as seeking to set aside both the default and the 

default judgment, we likewise treat it as such. In any event, 

the same extrinsic mistake requirements would apply whether 

Sandoval is seeking to reverse an order setting aside only the 

default judgment or an order setting aside both the default and 

default judgment. We shall refer to the motion as simply “the 

motion to set aside.”
5

anything about the lawsuit from a March 24, 2020 Department 

of Motor Vehicles (DMV) “order of suspension” (capitalization 

omitted) that he received “around [that date].” It informed 

Barajas that his driver’s license had been suspended because 

he had “failed to pay the judgment awarded” in a lawsuit, 

which the document identified by full name and case number. 

(Capitalization omitted.) He “understood the notice had 

something to do with a dispute relating to Jamie Sandoval” 

and forwarded it to his insurance company “in an attempt 

to determine what [it] meant.” The insurance agent, Joel 

Velasquez-Hernandez, told Barajas “he did not have any 

information on this claim or any court proceedings.” 

(Capitalization omitted.)

Barajas declared he only became aware of the litigation in 

April 2022 when his counsel informed him of it. According to the 

declaration of Barajas’s counsel, she contacted him at this time 

after his insurance carrier contacted her in April 2022 “to assist 

in the filing of [the] motion [to set aside] . . . following a period 

of settlement negotiations” between the insurance company and 

Sandoval/his counsel.

2. Declaration of Barajas’s insurance agent

Velasquez-Hernandez declared that “Maria Perez and . . . 

Barajas [had] called and informed [him] in 2020 that . . .

Barajas’[s] license had been suspended [and] that they were 

unsure if litigation had been filed relating to . . . Sandoval.” 

At that time, Velasquez-Hernandez “tried to investigate what 

was going on with the claim” but “was not able to determine any 

information regarding the status of this claim, and informed . . . 

Perez and . . . Barajas of such.” Velasquez-Hernandez “did not 

have access to the policy file [covering Perez and Barajas] or any 
6

related documentation prior to 2018 when [he] purchased the 

policy.”

3. Declarations of Barajas’s wife and former 

neighbor 

Both Barajas’s wife (Perez), and his former neighbor at 

the Parthenia Street apartment, Alvaro Rojas, declared that

Perez assisted Rojas with his catering business on Saturdays 

and Sundays, and that on the morning of Saturday February 24, 

2018—the date and time the proof of service stated a process 

server had handed Perez the summons and complaint at the 

Parthenia Street apartment—Perez was at Rojas’s apartment

next door, assisting him with food preparation. Both Perez and 

Rojas further declared that no one came to the door or handed 

her any papers that morning, and Perez declared she had never 

received them.

Perez further declared that, both at the time of her 

declaration and on February 24, 2018, she had “blonde hair, 

bluish green eyes, [was] 5 feet, 4 inches to 5 feet, 5 inches tall, 

and [weighed] approximately 300 to 325 pounds.”2 The proof 

of service of the summons and complaint, by contrast, described 

the “Maria ‘Doe’ ” to whom the papers had been provided as being 

“5 feet 1 inches [tall and] 160 pounds” with “black hair, brown 

eyes.” (Capitalization omitted.)

4. Supplemental briefing and evidence

At the initial hearing, the court requested supplemental 

briefing and evidence on specific issues, including “any and all 

2 The Velasquez-Hernandez declaration provided a 

consistent description of Perez as “hav[ing] fair skin, green 

eyes, blonde hair, and [being] heavyset.”
7

communication with the insurance companies in regard 

to [the] accident and civil complaint and default judgment” 

(capitalization omitted) and how Barajas could reasonably claim

he did not receive case-related documents mailed to what he 

acknowledged was his residence at the time, particularly when

he had received the DMV notice in the mail.

a. Supplemental evidence regarding mail 

issues 

In his supplemental declaration, Barajas stated that

“[e]ach apartment in the [Parthenia apartment] building 

had its own mailbox, accessible with a key. [¶] . . . Around the 

time the summons and complaint were reportedly mailed . . . 

and around the time the request for entry of default was 

reportedly mailed . . . [Barajas and Perez] frequently found 

[their] mailbox and other mailboxes on the property belonging 

to other apartments unlocked and open. [¶] . . . [They] brought 

this up to the property manager, . . . [who] would blame the 

mail carrier for the issue. [¶] . . . As a result of [his] mailbox 

frequently not being secure, [Barajas] believe[d] that others 

could access [his] mail around the time that the summons

and complaint and request for entry of default were mailed.” 

(Capitalization omitted.)

Barajas further clarified that he had received the DMV 

suspension notice at an address other than the Parthenia Street

apartment—namely, a Bradley Avenue address in Sylmar

reflected on the DMV notice as well. Barajas further declared 

that, although he “did not call the court after receiving the [DMV 

notice,]” he “did call the DMV . . . and [his] insurance agent, Joel 

Velasquez-Hernandez. [His] understanding of [his] conversation 

with . . . Velasquez-Hernandez was that after 2 years the 
8

information regarding this case had been erased, and there was 

no further action to take.” (Capitalization omitted.)

b. Supplemental evidence regarding 

communications with insurance carriers 

Both parties offered supplemental declarations with 

information relevant to communications with the parties’ 

respective insurance carriers: Farmers Insurance (Farmers), 

which covered both Perez and Barajas, and AFA Insurance, 

which covered Sandoval. 

Barajas offered a declaration of Charlene Poon, the 

Farmers adjuster handling claims related to the instant matter. 

Poon’s declaration describes and attaches several written 

communications in 2016 and 2017 that appear to confirm that 

the claims related to the collision had been resolved. Namely, 

“Farmers wrote a [December 9, 2016] letter to . . . Perez, 

indicating that a final settlement had been reached with AFA

Claim Services” and that AFA had “accepted 100 [percent]

liability on [Sandoval’s] behalf.” “On January 10, 2017, 

Farmers . . . sent . . . AFA . . . a letter enclosing the property 

damage release executed by . . . Perez for the amount of 

$7,664.29 to be paid to” Farmers/Perez. “[I]n addition to the 

property damage claims paid . . . AFA . . . paid a personal 

injury settlement of $12,000.00 to . . . Barajas on April 19, 

2017 regarding the subject incident” and “paid . . . Sandoval 

$18,676.23 for a property damage claim after the subject 

incident.”

A supplemental declaration of Sandoval’s counsel states

AFA refused to cooperate with counsel’s extensive efforts in 

2016, 2017, and 2018 to clarify the basis for AFA’s liability 

determination and AFA’s apparent lack of investigation 
9

preceding it. “AFA had never contacted [Sandoval’s counsel]

to take Sandoval’s statement and there was no witness other 

than the drivers, . . . [¶] . . . [t]here was no police report for the 

subject accident.” Sandoval’s counsel describes her numerous

efforts to “dispute [AFA’s] accepting liability on behalf of 

[Sandoval] without taking any statements or conducting any 

investigation,” and AFA’s failure to respond to her inquiries and 

requests and refusal to produce the claim file.

One document attached to Sandoval counsel’s declaration 

suggests AFA’s acceptance of liability on Sandoval’s behalf 

might have been based on some confusion on the insurer’s part. 

Namely, a January 9, 2017 letter from AFA to Sandoval’s counsel 

declining to reconsider AFA’s liability determination refers to 

the claimant as “Catalina Montoya,” although, by all accounts, 

no one by that name was involved in the collision. The letter 

otherwise appears to be referring to the Sandoval-Barajas 

collision, in that it includes the date of that collision, applicable 

claim number, and other details of the accident—for example, 

the street name and the direction in which Sandoval was 

traveling. Also in this letter, AFA states that the collision was 

“initially reported to us by Steve Franquez” who “reported that 

[Jamie] Sandoval was turning out of [a] parking space on the 

street and attempted to make a U-turn[,] causing the collision.”

D. The Challenged Order

After argument the court took the matter under 

submission. In a December 8, 2022 order, the court granted 

Barajas’s motion to set aside. The court explained its decision

in a written ruling.
10

1. Evidentiary rulings

Two of the court’s rulings on evidentiary objections form 

the basis for one of Sandoval’s arguments on appeal. Namely, 

the court sustained Sandoval’s objections to Barajas’s declared 

description of the accident and his “information and belief” 

statement that Sandoval’s insurance had determined Sandoval 

was at fault. Sandoval objected on the bases that (1) the 

testimony constitutes an “[i]mproper legal conclusion as 

to stating [Sandoval] was driving ‘negligently’ ” and as to stating 

Sandoval had been deemed to be “at fault”; (2) it is speculative 

and improper “[t]o the extent the testimony is lay opinion”; 

(3) it is argumentative; and (4) it misstates the evidence. The 

court’s order does not specify why the court sustained Sandoval’s 

objections to this testimony. 

2. Ruling granting motion to set aside

The court granted Barajas’s motion to set aside on the 

equitable ground of extrinsic mistake. The court’s written ruling 

explained why the court had rejected several other bases for relief 

proffered by Barajas.3 Namely, the court concluded the judgment 

was not void on its face, because Sandoval’s proof of service 

was valid on its face. Second, the court concluded the judgment 

could not be set aside pursuant to Code of Civil Procedure 

section 473.54 for lack of actual notice because the two-year 

jurisdictional time limit for seeking relief under that section had 

3 In so doing, the court made some findings potentially 

relevant to the issues raised on appeal. We therefore summarize 

the court’s reasoning in rejecting these arguments.

4 All further statutory references are to the Code of Civil 

Procedure. 
11

passed. Finally, the court rejected Barajas’s argument that 

the judgment should be set aside because of extrinsic fraud. 

The court found the declaration of the registered process server

to be credible, and that the declaration “establishe[d] more likely 

than not that the person identifying herself as ‘Maria’ was a 

competent member of the household” in that she was “an adult 

over 18 who appear[ed] to be a co-occupant of a residence, [but] 

refuse[d] to provide a name.” (See § 415.20.) “In addition, the 

court accept[ed] as credible that the documents were mailed 

to [Barajas] as noted in the proof of service.” (Capitalization 

omitted.) On these bases, the court concluded not only that 

Barajas had failed to establish extrinsic fraud regarding the 

proof of service, but that none had occurred.

The court, however, did find that Barajas was entitled

to equitable relief based on extrinsic mistake: namely, he had

made out “ ‘a meritorious case,’ ” “ ‘a satisfactory excuse for

not presenting a defense to the original action,’ ” and “ ‘diligence 

in seeking to set aside the default once . . . discovered.’ ” 

(Capitalization omitted.) As to the first requirement, the court 

concluded that Barajas had “declared that [Sandoval] made an 

illegal U-turn that caused the accident” and that “[Sandoval’s] 

own carrier . . . received corroborating information [to this effect] 

from an independent third party, Mr. Franquez.” (Capitalization 

omitted.) The court further found that both Barajas’s failure 

to respond to the initial complaint and notices of default and 

Barajas’s delay in seeking to set aside the default and/or default 

judgment were attributable to negligence on the part of Barajas’s

insurance carrier. “In sum, on this record, [the court concluded] 

it would be unjust to allow a [default] judgment [and the 

underlying default] to stand against [Barajas] because of [his] 
12

insurance carrier’s repeated breach of its duty to promptly defend 

[him].”

Sandoval timely appealed the court’s order.

DISCUSSION

“A motion to set aside a default judgment [and the 

underlying default] is addressed to the sound discretion of the 

trial court, and, in the absence of a clear showing of abuse of 

discretion where the trial court grants the motion, the appellate 

court will not disturb the order.” (Weitz v. Yankosky (1966) 

63 Cal.2d 849, 854 (Weitz).) “It is the policy of the law to

favor, wherever possible, a hearing on the merits.” (Ibid.) 

Nevertheless, “[w]hen a default judgment has been obtained, 

equitable relief [therefrom] may be given only in exceptional 

circumstances.” (Rappleyea v. Campbell (1994) 8 Cal.4th 

975, 981 (Rappleyea), italics omitted.) Such circumstances may 

exist as a result of “extrinsic mistake—a term broadly applied 

when circumstances extrinsic to the litigation have unfairly 

cost a party a hearing on the merits.” (Ibid.) Thus, a “stringent 

three-prong test” applies when a defendant seeks relief from 

a default and default judgment on this basis. (Id. at p. 982.) 

“ ‘First, the defaulted party must demonstrate that it has a 

meritorious case. Second[ ], the party seeking to set aside . . . 

must articulate a satisfactory excuse for not presenting a defense 

to the original action. Last[ ], the . . . party must demonstrate 

diligence in seeking to set aside the default once . . . discovered.’

[Citation].” (Ibid.)

Sandoval argues the court’s ruling that Barajas had 

satisfied these elements was inconsistent with “ ‘the applicable 

principles of law,’ ” and thus the court abused its discretion in 

setting aside the default and default judgment. (Horsford v. 
13

Board of Trustees of California State University (2005) 132 

Cal.App.4th 359, 393; see ibid. [“ ‘[a]ction that transgresses the 

confines of the applicable principles of law is outside the scope 

of discretion and we call such action an “abuse” of discretion’ ”].) 

We disagree and address each requirement below.

A. Meritorious Defense Requirement

Sandoval argues that, in assessing whether Barajas had 

a meritorious defense, the court improperly relied on evidence 

it had excluded—namely, the Barajas declaration’s description 

of Sandoval making “an illegal U-turn,” to which the court 

had sustained Sandoval’s objection. (Capitalization omitted.) 

But other evidence—including the determination by Sandoval’s 

insurer of his liability—also support that Barajas had a 

meritorious defense. Thus, even if the court relied in part on 

inadmissible evidence in concluding Barajas had established 

a meritorious case,5 we cannot say this renders the court’s 

conclusion an abuse of discretion, given the other evidence 

supporting that same conclusion. (See Montenegro v. Diaz (2001) 

26 Cal.4th 249, 255 (Montenegro) [in reviewing for abuse of 

discretion, “we must uphold the trial court ‘ruling if it is correct 

on any basis, regardless of whether such basis was actually 

invoked’ ”].)

Sandoval next argues the claimed other evidence

is insufficient to satisfy the meritorious defense element, 

noting, for example, the lack of a declaration from the witness 

5 Although it is not clear that the court meant to exclude all

parts of Barajas’s declaration describing the accident, even if we 

exclude it all, sufficient other evidence supported the meritorious 

defense element, as discussed above.
14

(Franquez) referenced in his insurer’s report. This argument 

challenges the adequacy of the evidence to prove fault or liability, 

which was not the issue before the court. The court needed only 

to determine whether Barajas had a colorable response to the 

allegations in the complaint. (See Weitz, supra, 63 Cal.2d at 

p. 854 [“appellate courts are much more disposed to affirm an 

order where the result is to compel a trial upon the merits than 

they are when the judgment by default is allowed to stand and 

it appears that a substantial defense could be made”].) For this 

reason, courts have accepted far less than evidence proving a 

defense to satisfy the meritorious defense element. (See Stiles v. 

Wallis (1983) 147 Cal.App.3d 1143, 1148 (Stiles) [“merely 

attaching a verification to a proposed answer is sufficient to 

demonstrate meritoriousness”]; Rappleyea, supra, 8 Cal.4th at 

p. 983 [unverified answer combined with declaration of “lawyer 

who informally aided defendants . . . that he believed ‘these 

defendants have a very good (and certainly a justiciable) defense 

to the plaintiff’s claim’ ” sufficient], capitalization omitted.) The 

court did not abuse its discretion in finding Barajas had satisfied 

this element.

B. Excused Failure to Respond in Litigation 

Requirement 

Sandoval argues that “the superior court made precisely 

zero findings [as to] . . . Barajas’[s] diligence prior to the entry 

of his default, even after finding that he was duly served with 

process” (italics omitted), and that “the trial court’s finding was 

solely that . . . Barajas’[s] purported reliance on his insurance 

company after the default judgment was entered, was an 

excusable mistake.” As a preliminary matter, this is not an 

accurate characterization of the court’s ruling. Rather, the 
15

court concluded that both “the delay in presenting a satisfactory 

defense and in promptly seeking relief [was] attributable to 

[Barajas’s] insurance carrier.” (Italics added.)

Moreover, the court did not abuse its discretion in 

concluding Barajas had been diligent. First, although the court 

failed to make an express finding that Barajas did not receive 

the summons and complaint and the request for default, we may 

infer from the court’s ruling an implicit finding to this effect. At 

the initial motion hearing, the court expressed skepticism that 

Barajas did not receive notice of the litigation before entry of 

the default and/or default judgment, but then expressed no such 

concerns after receiving supplemental evidence regarding the 

unreliability of Barajas’s mailbox. From this and the court’s 

overall ruling, we may imply the court found Barajas did not 

receive these documents. In reviewing for an abuse of discretion, 

we “indulge all legitimate and reasonable inferences in favor of 

upholding the trial court’s findings” (Bookout v. Nielsen (2007) 

155 Cal.App.4th 1131, 1137–1138) and may affirm on any basis 

reasonably supported by the evidence. (Montenegro, supra, 26 

Cal.4th at p. 255.)

Such an implicit finding is also supported by the evidence. 

The court could have deemed credible Barajas’s uncontradicted 

declaration that he never received the litigation documents 

mailed to him, and the declarations supporting that Perez was

not the “Maria ‘Doe’ ” who accepted service of the summons 

and complaint. Such findings are not in tension with the 

court’s conclusion that the complaint’s proof of service was not

fraudulent, and that service was proper. This is because, in order 

for the substituted service on Barajas via Maria Doe to be proper, 

Maria Doe needed only to appear to be a member of Barajas’s 
16

household—which could be true, even if she was not a member 

of the household. And if one accepts Barajas’s supplemental 

declaration that others could and did access his mailbox at 

the Parthenia Street apartment, often leaving it open, Barajas 

may not have received the litigation documents that the proofs 

of service stated were mailed to him, despite, as the court found, 

those proofs of service being truthful.

Second, Barajas could reasonably have relied on his 

insurer’s representations in 2016 and 2017 that Sandoval’s 

insurance carrier had accepted full responsibility for the accident 

if, as we conclude the court implicitly found, Barajas was 

unaware at the time that Sandoval had sued him in connection 

with the accident. As a result, the court could have accepted 

that Barajas reasonably believed that any dispute regarding 

the collision had been resolved by his insurer’s settlement with 

Sandoval’s insurer. Indeed, there is evidence suggesting AFA 

(Sandoval’s insurer) made a payment to Barajas as a result of a 

settlement. Our state Supreme Court has held that reasonable 

reliance on a third party, including an insurer, to protect one’s 

interest in a dispute can excuse a failure to respond to litigation

which results in a default and default judgment. (See Weitz, 

supra, 63 Cal.2d at pp. 855–856.) That is what the trial court’s 

decision impliedly found and what distinguishes the instant 

matter from the cases on which Sandoval relies. In the cases 

Sandoval cites, the defendants provided either no excuse at all, or 

no reasonable excuse. (See, e.g., Sporn v. Home Depot USA, Inc.

(2005) 126 Cal.App.4th 1294, 1301 [“[T]here is no statement that 

the papers were lost, stolen, forwarded to the wrong person, or 

eaten by the dog. Nothing in the record discloses what caused 

defendant to ignore the summons and complaint, [or] the letter 
17

from plaintiff’s lawyer . . . . No excuse, satisfactory or otherwise, 

was presented”]; Stiles, supra, 147 Cal.App.3d at p. 1148

[defendant seeking to set aside “flagrantly ignore[d] the 

responsibility to present a defense” and failed to “demonstrate 

a satisfactory excuse for not responding to the original action 

in a timely manner”].)

C. Diligence in Seeking Relief

Whether a defendant was sufficiently diligent in seeking 

relief from a default and/or default judgment “ ‘depends upon the 

circumstances of that particular case’ ” (Benjamin v. Dalmo Mfg. 

Co. (1948) 31 Cal.2d 523, 528 (Benjamin)), and “[w]hether a 

party has acted diligently is a factual question for the trial court” 

(Huh v. Wang (2007) 158 Cal.App.4th 1406, 1420). “[I]n ‘the 

determination of that question, a large discretion is necessarily 

confided to [the trial] court’ [citation], [but] there must be some

showing—some evidence—as the basis for the exercise of such 

discretion.” (Benjamin, supra, at p. 528.)

Here, the court attributed the delay between Barajas’s 

learning of the default/default judgment and the motion to 

set aside to the negligence of Barajas’s insurance carrier, not 

to any lack of diligence by Barajas. The record supports this

attribution. The court implicitly found the DMV notice was the 

first notice Barajas had received referencing a lawsuit. Multiple 

declarations established that Barajas promptly reached out 

to his insurer upon receiving the DMV notice. Given that 

his insurer had previously informed him the matter had been 

resolved via an insurance claim—and that the notice was 

from the DMV, not a court—the court did not err in finding 

that Barajas reasonably relied on his insurer to address the 

problem brought to his attention by the notice. (See Weitz, 
18

supra, 63 Cal.2d at pp. 857–858 [a defendant’s “reli[ance] upon 

another interested party . . . reasonably justified under the 

circumstances” is a factor “in determining whether a delay in 

moving to set aside a default judgment is excusable”].) Nor does 

the record support that, after the DMV mailing, Barajas received 

any further communications suggesting that his insurer was 

not, in fact, resolving the issue. (See Cruz v. Fagor America, 

Inc. (2007) 146 Cal.App.4th 488, 508 (Cruz) [“[i]n cases in which 

courts have found that a defendant’s reliance on a third party 

was reasonable, the defendant received no further information 

about the status of the litigation after submitting the complaint 

to the third party”].) Moreover, the court could have deemed 

credible and reasonable Barajas’s declared testimony that he 

considered the issue resolved after his insurer confirmed—two 

years after an apparent insurance settlement—that there was 

no record of any litigation about the accident.

But that Barajas acted reasonably in relying on his insurer 

to investigate and address the default judgment referenced in

the DMV notice does not end our inquiry as to diligence. At least 

two cases have held that, “in order to obtain relief from default, 

[such a defendant] must also establish justification for the 

inaction of the [insurance] carrier.” (Scognamillo v. Herrick

(2003) 106 Cal.App.4th 1139, 1149 (Scognamillo), citing Don v. 

Cruz (1982) 131 Cal.App.3d 695, 702.) This additional 

requirement is necessary because, under such circumstances, 

the insurer is effectively the real party in interest, and may be 

held accountable for its lack of diligence. (See Scognamillo, 

supra, at p. 1149; Don, supra, at p. 702.) To do otherwise invites 

an insurer to “ ‘shield[ ] itself behind the blamelessness of its 

insured’ ” and thereby potentially “make[ ] a shambles of orderly 
19

procedure.” (Scognamillo, supra, at p. 1149; see ibid. [“ ‘ “[w]hen 

inexcusable neglect is condoned even tacitly by the courts, they 

themselves unwittingly become instruments undermining the

orderly process of the law” ’ ”].)

Barajas failed to establish his insurer’s diligence below—

indeed, the court expressly found that Barajas’s insurer 

had “repeated[ly] breach[ed] . . . its duty to promptly defend 

[Barajas],” a finding neither party challenges on appeal. “The 

greater the prejudice to the plaintiff from vacating the default[,]

the greater the burden on the defendant of proving diligence and 

vice versa.” (Falahati v. Kondo (2005) 127 Cal.App.4th 823, 833–

834; see Rappleyea, supra, 8 Cal.4th at p. 984.) Here, setting 

aside the default would substantially prejudice Sandoval in that 

it would force him to try his case over eight years after the 

accident took place. Given the substantial showing of diligence 

needed to justify the prejudice to Sandoval from setting aside a 

years-old default judgment, Barajas, although “a blameless 

insured[,] is to be charged with the inexcusable neglect of [his]

insurer[ ]” for the purposes of the diligence element of extrinsic 

mistake. (Scognamillo, supra, 106 Cal.App.4th at p. 1149.) 

Accordingly, the trial court abused its discretion in concluding 

Barajas had established diligence sufficient to permit the court to 

set aside the default and default judgment. 
20

DISPOSITION

The order is reversed. The parties shall bear their own

costs on appeal.

NOT TO BE PUBLISHED.

ROTHSCHILD, P. J.

We concur:

BENDIX, J.

WEINGART, J.