Candelaria

Plaintiffs Phillip M. Candelaria, a minor, by Leticia Martinez as his guardian ad litem and Ms. Martinez as an individual, obtained a default judgment against defendant Silvia Avitia, who was served by publication. After making a demand for payment in satisfaction of the judgment upon defendants’ insurer, the insurer moved the superior court on behalf of defendants to set aside the default and default judgment. The motion was denied. Defendants appeal from the order denying their motion. We affirm.

Background

In November 1985, respondent Phillip Candelaria, 19 months old, was being baby-sat by Silvia Avitia in the day-care center which she operated out of the home she and her former husband (Jesus) owned. While preparing to change Phillip’s diapers, Silvia put Phillip in a sink where hot water was running. Scalding water from the faucet flowed onto Phillip’s penis, scrotum, and buttocks, causing Phillip to suffer second and third degree burns to his genitals and buttocks.

Silvia fled to whereabouts unknown. All efforts to locate her failed. In March 1986, respondents filed this action.

Western Mortgage Insurance Agency (hereafter Western) had issued a homeowner’s…