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Allison Gibson
February 21, 2011
BLaw 3201—Sec. 3
Case Brief One

CRUZ vs. FAGOR AMERICA, INC.
California Court of Appeal, Fourth District, Division 1, 2007
52 Cal. Rptr.3d 862
146 Cal.App.4th 488

FACTS: On September 10, 2001, Cruz, 16, suffered burns on his left torso and thigh when taking the top off a pressure cooker that his parents bough at a San Diego County Fair earlier that summer. Fagor America, Inc. (Fagor) was the distributor of the pressure cooker. Cruz’s parents notified Fagor of the incident by e-mail that same day that is occurred. Fagor forwarded the complaint to its insurance broker who forwarded it to Fagor’s general liability insurer. The insurance company notified Cruz on June 2, 2003 that it was not assuming liability for the injuries, but would pay for medical expenses up to $5,000. On July 21, 2004, Cruz’s attorney informed the insurer that Cruz planned to be compensated for all expenses incurred from the incident. They again denied liability in a letter dated August 18, 2004.
On December 1, 2004, Cruz filed a complaint against Fagor, alleging causes of action for negligence. On December 14, 2004, Cruz mailed the summons and complaint to Fagor addressed to the president, Patrico Barriga, and requested a return receipt. Fagor never filed an answer to the summons. A copy of Cruz’s request for entry of default was mailed to Fagor February 9, 2005. The court entered default on Cruz’s second request for default on February 25, 2005. On May 31, 2004, a default of $259,114.50 was made against Fagor. Fagor did not start dealing with the issue until November 29, 2005 when they requested denial of entry of default and default judgment. In response, Cruz’s attorney filed a declaration saying that an agent of Barriga’s who regularly received mail on his behalf signed the return receipt. The trail court heard Fagor’s motions on January 27, 2006 and granted the motion on February 1. Cruz filed for appeal February 16.

ISSUE: Is Fagor’s motion...

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