Judge: Barbara M. Scheper, Case: 23STCV00662, Date: 2023-08-11 Tentative Ruling
Case Number: 23STCV00662 Hearing Date: August 11, 2023 Dept: 30
Calendar
No.
Park vs. Woo, et. al.,
Case No. 23STCV00662
Tentative Ruling re:
Defendants’ Motion to Set Aside Default
Defendants Candice Woo and Kevin Woo
(collectively, Defendants) move to set aside the default entered against them
on March 30, 2023. 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 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.)
Plaintiff
Chang Jin Park aka Charles Park (Plaintiff) served the summons and complaint on
Defendants via substitute service on February 8, 2023. Defendants’ response was
due by March 20, 2023. On March 30, 2023, Plaintiff filed a Request for Entry
of Default as to Defendants, which was entered by the Court that day.
Defense counsel states that she was
retained on March 28, 2023, and that she “attempted to file an answer shortly
after receiving the file, only to learn that Plaintiff’s counsel filed a
request for default on March 30, 2023.” (Harwell Decl. ¶¶ 4-5.) Yet defense
counsel did not contact Plaintiff’s counsel regarding the default until May 9,
2023, over a month after counsel was retained and default was entered. (Harwell
Decl. ¶ 6, Ex. A.) Defense counsel provides no explanation for this delay.
These circumstances are
inapposite to those in Lasalle v. Vogel (2019) 36 Cal.App.5th 127, cited
by Defendants. There, the plaintiff immediately threatened entry of default
after the response deadline expired, then requested entry of default only two
business days later. (Id. at 131.) After default was entered, the
defendant found an attorney by the end of the week and filed a motion to set
aside the default a week later. (Ibid.) The Court of Appeal found that
the trial court erred in not setting aside the default, citing factors
including the
“unreasonably short” deadline given by plaintiff’s counsel and “the total
absence of prejudice to [plaintiff] from any set-aside, given the relatively
short time between respondent seeking the default and [defendant] asking to be
relieved from it.” (Id. at 138-39.) Here, in contrast, Defendants first
contacted Plaintiff regarding the default over a month after it was entered,
and did not file the current motion seeking relief until four months after
entry. (Kim Decl. ¶ 4.) Defendants’ claim that Plaintiff “rushed”
to file the default appears immaterial in light of their own delay in seeking
relief.
Defendants also argue
that Plaintiff’s counsel breached his obligation to warn opposing counsel of an intent to take a default. (Lasalle, 36 Cal.App.5th at 137.) However, the obligation to warn
opposing counsel of default “arises only if opposing counsel's identity is
known.” (Shapell Socal Rental Properties, LLC v. Chico's FAS, Inc.
(2022) 85 Cal.App.5th 198, 213.) Defendants’ counsel did not notify Plaintiff that they had been
retained to represent Defendants until the email sent May 9, 2023. (Harwell
Decl., Ex. A [14].) Furthermore, Plaintiff’s counsel states that he informed
Defendants’ insurance carrier of his intention to request entry of default
before filing it. (Kim Decl. ¶ 3.) In these circumstances, it does not appear
that Plaintiff’s counsel breached his duty to warn.
Because
Defendants have not shown excusable neglect warranting discretionary relief
from default, the motion is denied.