Filed 10/17/13 Shor v. Little New York Restaurant CA2/5
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 FIVE


LEONID SHOR,                                                         B239112

         Plaintiff and Appellant,                                    (Los Angeles County
                                                                     Super. Ct. No. BC377016)
         v.

LITTLE NEW YORK RESTAURANT,
INC.,

         Defendant and Respondent.



         APPEAL from orders of the Superior Court of Los Angeles County, Rita Miller,
Judge. Affirmed.
         Law Offices of Roger P. Noorthoek and Roger P. Noorthoek for Plaintiff and
Appellant.
         Murchison & Cumming, Edmund G. Farrell and Gina Bazaz for Defendant and
Respondent.
                                    I. INTRODUCTION


       Plaintiff, Leonid Shor, appeals from an order setting aside the default judgment
against Little New York Restaurant, Incorporated. Defendant, Burlington Insurance
Company, intervened after the default judgment was entered against the restaurant.
Defendant then successfully moved to set aside the default judgment. Plaintiff contends
the trial court abused its discretion by permitting intervention after entry of the default
judgment. Plaintiff also argues the trial court erred by setting aside the default judgment
against the restaurant. We affirm the order.


                                    II. BACKGROUND


                                 A. Pre-intervention Events


       On September 5, 2007, plaintiff filed his complaint. Plaintiff’s underlying suit
against the restaurant previously came before this court. (Shor v. Little New York
Restaurant, Inc. (Jun. 10, 2010, B215282) [nonpub. opn.].) Plaintiff alleged he received
bodily injuries while on the premises of the restaurant on May 21, 2006. On February 15,
2011, the restaurant’s default was entered. On March 9, 2011, plaintiff obtained a default
judgment against the restaurant in the amount of $260,008. On March 14, 2011, plaintiff
filed a declaration indicating the judgment was mailed to the restaurant and defendant.
The restaurant is a suspended corporation.


                         B. Motion To Intervene And Opposition


       On April 27, 2011, defendant filed an application for leave to intervene on behalf
of the restaurant. Defendant argued it has a direct interest in the matter because it issued
a general liability insurance policy to the restaurant on May 23, 2006. Defendant
submitted a declaration from Jacki Creighan, its area claims manager in support of its

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motion. Ms. Creighan declared she possessed personal knowledge of defendant’s
business records, including the insurance policy. The insurance policy was effective
from April 24, 2006, to April 24, 2007. Plaintiff’s alleged injuries occurred within the
effective dates of the insurance policy. The first time defendant had knowledge of the
litigation was when it received the default entry request on March 8, 2011.
         On July 25, 2011, plaintiff filed his opposition. Plaintiff argued defendant is
barred from intervening on behalf of the restaurant and may only intervene to protect its
own interest. Plaintiff contended Ms. Creighan’s declaration was inadmissible. Plaintiff
asserted defendant should pursue a separate case under Insurance Code section 11580.


                                C. Motion To Intervene Hearing


         On August 5, 2011, the hearing was held on defendant’s intervention motion.
Defendant’s intervention motion was granted on the grounds that defendant had a direct
interest in the case. Defendant was ordered to file a responsive pleading and a motion to
set aside the default judgment within five days.


             D. Motion To Set Aside The Default Judgment, Opposition, And Reply


         On August 10, 2011, defendant moved to set aside the default judgment against
the restaurant. Defendant argued setting aside the default judgment was proper under
Code of Civil Procedure section 473, subdivision (b). 1 Defendant contended it was
unaware of the case until March 8, 2011, when it received notice of entry of default.
Defendant argued the motion under section 473, subdivision (b) was brought within the
six-month time limitation. Defendant submitted as support declarations from its attorney,
Lisa D. Angelo, and Ms. Creighan. Ms. Angelo declared the restaurant was a suspended
corporation. She stated defendant had a direct interest in the case because it may have to

         1
             Future statutory references are to the Code of Civil Procedure unless otherwise
noted.

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satisfy the default judgment. Ms. Creighan declared defendant received a copy of the
default judgment request on March 8, 2011 and it had no knowledge of the lawsuit before
then.
         On November 28, 2011, plaintiff filed his opposition. Plaintiff argued defendant
sought relief from the default judgment, not the default. Plaintiff contended: the default
remained in effect; thus the trial court would have to re-enter the judgment; defendant did
not present admissible evidence to merit relief under section 473; and on September 13,
2007, plaintiff sent defendant a copy of the complaint. On December 6, 2011, defendant
filed its reply. Defendant argued the supporting declarations are admissible because they
are premised on personal knowledge, relevant, and signed under penalty of perjury.


        E. Tentative Ruling And Motion To Set Aside The Default Judgment Hearing


         On December 13, 2011, the trial court issued its tentative ruling. The trial court
indicated it was inclined to grant the motion and allow defendant to file a complaint in
intervention. The trial court found defendant had established it was unaware of the case
until after receiving the request for entry of judgment. The trial court tentatively ruled
defendant acted with diligence by retaining counsel, moving to intervene, and moving to
set aside the default judgment. The trial court reiterated the restaurant was in default, but
defendant could put on its own defense to protect the insured’s interests.
         At the December 13, 2011 hearing, the trial adopted its tentative ruling as the
order of the court. The trial court granted defendant’s motion to set aside the default
judgment and ordered plaintiff to file a complaint in intervention. Plaintiff subsequently
appealed the order setting aside their default judgment and the order granting defendant’s
intervention motion.




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                                     III. DISCUSSION


                                      A. Appealability


       Defendant contends the order granting its intervention motion is not appealable.
Judgment was entered on March 9, 2011. On December 13, 2011, the trial court granted
the motion to set aside the judgment. Concurrently, the trial court granted defendant’s
intervention motion. A post-judgment motion setting aside a judgment is appealable.
(§ 904.1, subd. (a)(2); JSM Tuscany, LLC v. Superior Court (2011) 193 Cal.App.4th
1222, 1236; Aheroni v. Maxwell (1988) 205 Cal.App.3d 284, 289, fn. 1; Yarbrough v.
Yarbrough (1956) 144 Cal.App.2d 610, 613.) In order to review the order setting aside
the judgment, we necessarily have to examine the intervention issues. The decision to
permit intervention necessarily affects the order setting aside the judgment. Thus, the
intervention order is appealable pursuant to section 906. (Cahill v. San Diego Gas &
Electric Co. (2011) 194 Cal.App.4th 939, 948; Abramson v. Juniper Networks, Inc.
(2004) 115 Cal.App.4th 638, 649.)


                                          B. Merits


       Plaintiff argues the trial court abused its discretion by granting defendant leave to
intervene and setting aside the default judgment against the restaurant. Plaintiff
contends: defendant failed to satisfy the requirements for intervention by lacking direct
interest and expanding the litigation; the trial court should not have set aside the default
judgment while leaving the default against the restaurant in effect; and defendant did not
meet its burden demonstrating entitlement to relief under section 473. We disagree.
       First, the trial court did not abuse its discretion in permitting defendant to
intervene. Section 387, subdivision (a), provides in part, “Upon timely application, any
person, who has an interest in the matter in litigation, or in the success of either of the
parties, or an interest against both, may intervene in the action or proceeding.” Our

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colleagues in Division Three of this appellate district have held: “Pursuant to . . . section
387, the trial court has discretion to permit a nonparty to intervene where the following
requirements are satisfied: (1) the proper procedures have been followed; (2) the
nonparty has a direct and immediate interest in the action; (3) the intervention will not
enlarge the issues in the litigation; and (4) the reasons for the intervention outweigh any
opposition by the parties presently in the action. [Citation.]” (Western Heritage Ins. Co.
v. Superior Court (2011) 199 Cal.App.4th 1196, 1205, fn. 12 (“Western Heritage”); Gray
v. Begley (2010) 182 Cal.App.4th 1509, 1521; Truck Ins. Exchange v. Superior Court
(1997) 60 Cal.App.4th 342, 346.) Intervention may occur even after judgment has been
entered. (Mallick v. Superior Court (1979) 89 Cal.App.3d 434, 437 [section 387
amended to “upon timely application” in 1977]; see Lazar v. Hertz Corp. (1983) 143
Cal.App.3d 128, 142.) Intervention is appropriate under these circumstances where an
insurer has in interest in the judgment. (Western Heritage, supra, 199 Cal.App.4th at p.
1205; Royal Indemnity Co. v. United Enterprises, Inc. (2008) 162 Cal.App.4th 194, 206;
Reliance Ins. Co. v. Superior Court (2000) 84 Cal.App.4th 383, 385-387.) No abuse of
discretion occurred.
       Second, plaintiff raises various issues concerning the restaurant’s default. None of
them warrant discussion. The default remains in full force.
       Third, the trial court did no abuse its discretion in setting aside the judgment.
Section 473, subdivision (b) provides in part: “The court may, upon any terms as may be
just, relieve a party or his or her legal representative from a judgment, dismissal, order, or
other proceeding taken against him or her through his or her mistake, inadvertence,
surprise, or excusable neglect. Application for this relief . . . shall be made within a
reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or
proceeding was taken.” Our Supreme Court has held: “‘A ruling on a motion for
discretionary relief under section 473 shall not be disturbed on appeal absent a clear
showing of abuse.’ [Citation.]” (Zamora v. Clayborn Contracting Group, Inc. (2002) 28
Cal.4th 249, 257; Purdum v. Holmes (2010) 187 Cal.App.4th 916, 922; see Weitz v.
Yankosky (1966) 63 Cal.2d 849, 854 [“A motion to set aside a default judgment is

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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 not
disturb the order.”].) The trial court’s determination of controverted facts will not be
disturbed. (Zamora v. Clayborn Contracting Group, Inc., supra, 28 Cal.4th at p. 258;
Purdum v. Holmes, supra, 187 Cal.App.4th at p. 922.) Our Supreme Court has held:
“‘[T]he provisions of section 473 of the Code of Civil Procedure are to be liberally
construed and sound policy favors the determination of actions on their merits.’
[Citation.]” (Zamora v. Clayborn Contracting Group, Inc., supra, 28 Cal.4th at p. 256;
see Henderson v. Pacific Gas & Electric Co. (2010) 187 Cal.App.4th 215, 230.)
       Here, the trial court found defendant was unaware of the lawsuit until March 8,
2011. Defendant filed its motion to intervene on April 27, 2011. Defendant filed its
motion to set aside the default judgment on August 10, 2011, within the six-month time
limitation under section 473, subdivision (b). The trial court determined defendant acted
with diligence by retaining counsel, moving to intervene, and moving to set aside the
default judgment. Based on the trial court’s factual findings, it did not abuse its
discretion by granting defendant’s section 473 motion to set aside the default judgment.




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                                   IV. DISPOSITION


      The orders under review are affirmed. Defendant, Burlington Insurance
Company, is awarded its appeal costs from plaintiff, Leonid Shor.
                           NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                           TURNER, P. J.




We concur:




      KRIEGLER, J.




      KUMAR, J.*




*
        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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