Judge: Alison Mackenzie, Case: 24STCV12665, Date: 2024-11-19 Tentative Ruling
Case Number: 24STCV12665 Hearing Date: November 19, 2024 Dept: 55
NATURE OF PROCEEDINGS: Hearing on Plaintiff's Motions
to Set Aside/Vacate Default
Plaintiff's Motion
to Set Aside/Vacate Default against Valdez and Kean is granted.
The Motion to
Set Aside/Vacate Default against NexGen and Service is vacated as moot.
BACKGROUND
Plaintiff Veronica Roberson
filed this action against Ismael Valdez, Ben Kean,
NexGen Air Conditioning & Heating (“NexGen”), and Service Finance Company,
LLC (“Service”) (collectively “Defendants”),
alleging breach of contract to install a new HVAC system.
On October 4, 2024, a default was entered against Valdez and
Kean.
On October 17, 2024, a default was filed against NexGen and
Service, but rejected by the Clerk’s office on October 28, 2024.
On October 25, 2024, Plaintiff filed two motions to set
aside and vacate the previously entered defaults. Defendants do not oppose the
motions. The motion to set aside and vacate the defaults against NexGen and
Service is vacated as moot because the requests for default were rejected by
the Clerk’s office and thus default has not been entered against those defendants.
The motion to set aside and vacate the defaults against Valdez and Kean is
advanced to November 19, 2024 and addressed in this tentative.
LEGAL STANDARD
Per Code of Civil Procedure section 473, subdivision (b), a
court may “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.” In addition, a
court must vacate a default or dismissal when a motion for relief under Section
473, subdivision (b) is filed timely and accompanied by an attorney's sworn
affidavit attesting to the attorney's mistake, inadvertence, surprise or
neglect “unless the court finds that the default or dismissal was not in fact
caused by the attorney's mistake, inadvertence, surprise or neglect.” Code Civ.
Proc., § 473, subd. (b).
The party or the legal representative must seek such relief
“within a reasonable time, in no case exceeding six months, after the judgment,
dismissal, order, or proceeding was taken.” Code Civ. Proc., § 473, subd. (b);
see Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980 (“because more than
six months had elapsed from the entry of default, and hence relief under
section 473 was unavailable”).
ANALYSIS
Preliminarily, Plaintiff's motion is timely because
Plaintiff filed the motion less than six months after the entries of default.
Plaintiff submits that she erroneously sought entry of default
against Valdez and Kean because her attorney failed to calendar the extension he
granted Defendant’s counsel to file a responsive pleading by November 25, 2024.
Motion at p. 2, Declaration of Gary Sanders at p. 5.
This motion is unusual in that it is Plaintiff rather than
Defendants seeking relief from judgment. The plain language of section 473
subdivision (b) permits relief only from “judgment, dismissal, order, or other
proceeding taken against [a party] through his or her mistake,
inadvertence, surprise, or excusable neglect.” Likewise, where the attorney’s
mistake, inadvertence, surprise, or neglect was the cause of default, the court
must “vacate any … resulting default entered by the clerk against his or her
client. Code Civ. Proc., § 473, subd. (b). Here, the party against whom the
default was entered is not the party whose mistake resulted in default.
Notwithstanding these apparent limitations of section 473,
subdivision (b), the Court exercises its inherent equitable power to void the
entries of default for lack of due process. Accordingly, Plaintiff’s motion to
set aside/vacate the defaults entered against Valdez and Kean is granted.
CONCLUSION
Plaintiff's Motion to Set Aside/Vacate Default against Valdez
and Kean is granted.