Judge: Alison Mackenzie, Case: 22STCV37218, Date: 2024-03-12 Tentative Ruling

Case Number: 22STCV37218    Hearing Date: March 12, 2024    Dept: 55

NATURE OF PROCEEDINGS: Defendant’s Motion to Set Aside Entry of Default

BACKGROUND

In this case, TOWNS END DEVELOPMENT, INC. (Plaintiff) filed a Complaint against VIRGINIA VALDEZ (Defendant), alleging that Plaintiff entered into a written contract to purchase an apartment building from Defendant who later decided not to sell.

At this time, Defendant brings a motion requesting an order vacating and setting aside the default entered on 1/19/23. Plaintiff opposes the motion.  

LEGAL STANDARD

A court may relieve a party from a default due to mistake, inadvertence, surprise, or excusable neglect if the party seeking relief files a motion “‘within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken….’”  Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249,258 (quoting Code Civ. Proc., §473(b)). 

ANALYSIS

The Court entered default against Defendant on 1/19/23, which means the six-month deadline to seek relief from entry of default under Section 473(b) was 7/19/23. At the time Plaintiff filed suit against Defendant, Defendant’s prior attorney had recently passed away. Defendant acknowledges in her declaration that she knew Plaintiff intended to seek her default in 1/23 and in fact knew when the default was entered. But Defendant did nothing to remedy the situation, even after she retained new counsel as of 4/23, well within the six-month limit for seeking relief from default. Defendant’s motion fails to show any cognizable excuse or explanation for her or her counsel’s failure to timely file a motion for relief.

In light of such facts, the Court finds untimeliness, lack of diligence in filing a motion for relief, and inexcusable neglect.  Further, there is no attorney declaration admitting fault, in order to qualify for mandatory relief, assuming that the six-month limit had not passed.

CONCLUSION

Due to expiration of the six-month time limit to move for the relief, the motion is denied.