Judge: Barbara M. Scheper, Case: 21AHCV00134, Date: 2024-05-06 Tentative Ruling

Case Number: 21AHCV00134    Hearing Date: May 6, 2024    Dept: 30

                                                                                                                                        Dept. 30

Calendar No.

Georgian v. US GC Investment, et. al., Case No. 21AHCV00134 (Consolidated with 21AHCV00164 and related to 20STCV09036 and 22STCP03994)

Tentative Ruling re:  Defendant’s Motion to Set Aside Defaults and to Set Aside Order Deeming requests for admission admitted.

Defendant Fu moves to set aside the clerk’s Entry of Default on September 20, 2023 (21AHCV00134) and September 12, 2023 (21AHCV00164).  He requests that the Court allow him to file an answer and cross complaint. Additionally, Defendant Fu moves to set aside an order for admission to be deemed admitted.  The motion is denied.

Under Code of Civil Procedure section 473, subdivision (b): “the court may, upon any terms as may be just, 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. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.”

To obtain discretionary relief under section 473, subdivision (b), the party moving for relief on the basis of “mistake, inadvertence, surprise, or excusable neglect” must show specific facts demonstrating that one of these conditions was met. (Hopkins & Carley v. Gens (2011) 200 Cal.App.4th 1401, 1410.)

Section 473 also provides, “[n]otwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, 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).)

“Section 473 is often applied liberally where the party in default moves promptly to seek relief, and the party opposing the motion will not suffer prejudice if relief is granted. [Citations.] In such situations ‘very slight evidence will be required to justify a court in setting aside the default.’ [Citations.] [¶] Moreover, because the law strongly favors trial and disposition on the merits, any doubts in applying section 473 must be resolved in favor of the party seeking relief from default.” (Fasuyi v. Permatex, Inc. (2008) 167 Cal.App.4th 681, 695.)

            The Complaint in 21AHCV00134 was filed on December 3, 2021.  Defendant Fu was sub-served on December 13, 2021 and his default was entered on September 20, 2023.

            The Complaint in 21AHCV00164 was filed on December 30, 2021.  Defendant Fu was personally served on March 28, 2022 and his default was entered on September 12, 2023.

            The instant motion seeking relief was filed on March 20, 2024, 182 days, and 190 days respectively from the entries of default.  Although the motion was brought exactly six months after entry of default in the earlier filed case, the Court finds the motion untimely.  The statute requires the motion to be brought within a “reasonable time,” in no case exceeding six months.  Here, Defendant Fu does not deny he was served with the complaints in both cases but did nothing.  He offers no testimony regarding when he learned of the defaults and why he waited so long to seek relief.

            Even if the motion was timely brought, the motion would be denied.  Defendant Fu vaguely declares that he was told by counsel for Defendant GC Investment that settlement talks were ongoing, “until sometime in 2023,” and so he thought settlement was inevitable and that his interests would be protected by his co-defendants.  Defendant Fu also asserts that he was confused because of the multiple cases to which he was a party.  Defendant Fu’s bare bones declaration simply does not establish excusable neglect.

            Defendant Fu also moves to Set Aside an Order Deeming Request for Admissions Admitted. On September 28, 2023, the Court vacated the hearing on Plaintiff’s Motion to Deem as Admitted Plaintiff’s Request for Admission (21AHCV00134). The Motion to Deem Request for Admissions was never granted and thus there is no court order deeming the request for admissions admitted. Additionally, a request to Set Aside an Order Deeming Request for Admissions Admitted must be brought as a separate motion.