Judge Cherol J. Nellon, Case Number: 23STCV13526, Date: 2024-10-08 Tentative Ruling

Judge: Cherol J. Nellon, Case: 23STCV13526, Date: 2024-10-08 Tentative Ruling

Case Number: 23STCV13526 Hearing Date: October 8, 2024 Dept: 14

Case Background

This is an action for abatement of private and public nuisance and negligent infliction of emotional distress. Plaintiff Brittany Britton alleges that her neighbors began shining their lights directly into her home in late 2023, causing Plaintiff emotional distress and the loss of use and enjoyment of her property.

On May 30, 2024, Plaintiff Brittany Britton filed her Complaint against Defendants Amit and Ami Ben.

On August 14, 2024, default was entered against Defendants.

On September 5, 2024, Defendants filed this motion to set aside entry of default.

Instant Pleading

Defendants move to set aside entry of default.

Decision

Defendants’ motion to set aside default is GRANTED.

Legal Standard

“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.” (Code Civ. Proc., section 473(b).)

Discussion

Defendants move to set aside default on the grounds that they mistakenly believed that they had not been properly served and had more time to secure counsel. On July 10, 2024, Plaintiff’s process server, Plaintiff’s counsel’s law clerk, Mark Dickerson, personally served Defendants at their home. (Motion, Exhs. B, D.) Defendants testify that they called the police after Dickerson trespassed onto their property by jumping a fence. (Ben Declarations, ¶3.) Defendants believed they had not been properly served and that they had more time to obtain legal representation. (Id., ¶4.)

The Court is satisfied that Defendants failed to respond to the Complaint because they mistakenly believed service was improper. Additionally, the law favors cases being tried on their merits. Lastly, the motion is unopposed. The lack of an opposition amounts to a concession that the motion is meritorious. (See California Rules of Court Rule 3.1113(a); see also Rule 3.1320(f); Herzberg v. County of Plumas (2005) 133 Cal.App.4^th 1, 20 (the party who fails to argue an issue abandons that issue).) Here, because Defendants meet the requirements of Code Civ. Proc., section 473, the motion to set aside default is GRANTED.

Conclusion

Defendants’ motion to set aside default is GRANTED.