Judge: Anne Hwang, Case: 21STCV13238, Date: 2024-01-23 Tentative Ruling

Case Number: 21STCV13238    Hearing Date: January 23, 2024    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely.  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

BACKGROUND

On April 7, 2021, Plaintiff Vita Lancucka (“Plaintiff”) filed a complaint against Defendant Debora M Reed and Does 1 through 100 for negligence and premises liability.

On July 30, 2021, default was entered against Defendant Debora M Reed (“Defendant”).

On August 2, 2021, Defendant filed an answer.

On September 28, 2023, the Court informed Defendant that it was in default.

On October 16, 2023, Defendant filed the instant motion to set aside the default.

LEGAL STANDARD

Under Code of Civil Procedure section 473(b), the Court may relieve a party from a dismissal taken against him through his mistake, inadvertence, surprise, or excusable neglect.  This application must be filed no more than six months after entry of the order from which relief is sought, and must contain an affidavit of fault demonstrating the moving party’s mistake, inadvertence, surprise, or excusable neglect.

“After six months from default, a trial court may still vacate a default on equitable ground even if statutory relief is unavailable.”¿ (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981.)¿ A party may obtain equitable relief from an entry of dismissal based on an extrinsic mistake when the moving party: (1) has a meritorious case, (2) articulates a satisfactory excuse for not presenting a defense to the original action, and (3) demonstrates diligence in seeking to set aside the dismissal once discovered.¿ (Id. at p. 982.)¿ 

An extrinsic mistake is broadly defined “. . . to encompass almost any set of extrinsic circumstances which deprive a party of a fair adversary hearing. It does not seem to matter if the particular circumstances qualify as fraudulent or mistaken in the strict sense.”¿(In re Marriage of Park (1980) 27 Cal.3d 337, 342.) An ‘extrinsic’ mistake means a mistake that deprived a party of the opportunity to present a claim or defense while an ‘intrinsic’ mistake is one that goes to the merits of a proceeding.¿ (In re Marriage of Stevenot (1984) 154 Cal.App.3d 1051, 1064-1065.)¿ 

A default cannot be set aside when the complaining party’s negligence contributed to the rise to the fraud or mistake.¿(See Kulchar v. Kulchar (1969) 1 Cal.3d 467, 473-474 [complaining party’s failure to investigate and assemble evidence at trial as grounds for denying equitable relief sought].)¿An extrinsic mistake may result from a disability when the disability renders the party incompetent or incapacitated such that it deprives the party from asserting a claim or defense. (See id. at pp. 471-472.) 

DISCUSSION

Defendant asks the Court to set aside the default on equitable grounds. Defendant’s counsel states that Plaintiff will not stipulate to setting aside the default. No opposition has been filed by Plaintiff.

Defendant contends she had no notice that default was entered against her and argues none of the parties realized this until September 28, 2023, when the Court observed the default during a final status conference. (Min. Order, 9/28/23; Mann Decl. ¶ 7.) Defendant argues that after filing her answer a few days after default was entered, the parties began discovery to litigate the case. (Mann Decl. ¶ 5.)

Defendant appears to contend that the extrinsic mistake was that the Court accepted Defendant’s answer, despite the entry of default, and signed a subsequent trial continuance stipulation. (Motion, 6.) However, although Defendant does not appear to discuss the three elements under Rappleyea v. Campbell (1994) 8 Cal.4th 975, there, the court declined to decide whether a different test applied when default judgment had not been entered. (See Rappleyea, supra, 8 Cal.4^th at 982.) Here, the record shows that Defendant filed an answer three days after default was entered, and Defendant asserts she participated in discovery. Additionally, on October 14, 2022, the Court signed a stipulation to continue trial. Also, it does not appear that Plaintiff requested default judgment until November 1, 2023. Therefore, in light of the above, and seeing no opposition, the motion to set aside the entry of default is granted on equitable grounds.

CONCLUSION AND ORDER

Therefore, the Court GRANTS Defendant’s motion to set aside the default entered against her on July 30, 2021.   

The Court accepts the answer filed on August 2, 2021 as the operative responsive pleading. The matter is set for a Final Status Conference on May 8, 2024 at 10:00 a.m. in Department 32 of the Spring Street Courthouse.

Trial is set for May 22, 2024 at 8:30 a.m. in Department 32 of the Spring Street Courthouse.

Defendant to provide notice and file a proof of service of such.