Judge: Christian R. Gullon, Case: 22PSCV02996, Date: 2024-05-09 Tentative Ruling

Case Number: 22PSCV02996    Hearing Date: May 9, 2024    Dept: O

Tentative Ruling

EDWARD ECHNEIQUE’s MOTION TO SET ASIDE DISMISSAL is DENIED without prejudice.

Background

This case arises from the breach of a rental agreement.

On December 20, 2022, Plaintiff White Avenue Plaza, LLC filed suit against Defendants REYNA MEJINA also known as REYNA MEJIA (“Reyna”); JIMMY BLANEY (“Blaney”); and EDWARD ECHENIQUE (“Edward”) for damages (arising from failure to pay monthly rent and Plaintiff’s incurred fees and fines from Defendants’ alleged illegal and unlicensed activity on the property).[1]

On August 29, 2023, default was entered against Edward.

On November 30, 2023, default was entered against Reyna.

On February 27, 2024, Edward filed the instant motion.[2]

On March 11, 2024, Blaney filed his answer.

On April 25, 2024, Plaintiff filed its opposition.

Legal Standard

Edward brings forth the motion pursuant to CCP Section 473(b).

Under CCP 473(b), a judgment may be set aside due to mistake, inadvertence, surprise, and excusable neglect. The terms are defined as follows:  

Mistake is not a ground for relief under section 473, subdivision (b), when ‘the court finds that the “mistake” is simply the result of professional incompetence, general ignorance of the law, or unjustifiable negligence in discovering the law ....’ [Citation] Further, ‘[t]he term “surprise,” as used in section 473, refers to “some condition or situation in which a party ... is unexpectedly placed to his injury, without any default or negligence of his own, which ordinary prudence could not have guarded against.” [Citation] Finally, as for inadvertence or neglect, ‘[t]o warrant relief under section 473 a litigant's neglect must have been such as might have been the act of a reasonably prudent person under the same circumstances. The inadvertence contemplated by the statute does not mean mere inadvertence in the abstract. If it is wholly inexcusable it does not justify relief.’ [Citation] 

(Henderson v. Pacific Gas & Electric Co. (2010) 187 Cal.App.4th 215, 229-230.) 

Discussion

Edward moves for relief because of his “excusable neglect.” (Motion p. 3:26-27.)

However, as noted by Plaintiff in opposition, nowhere does Edward set forth any excusable neglect which would support relief from default. The burden is on the moving party to show that the neglect was excusable, i.e., that the default could not have been avoided through the exercise of ordinary care. (Opp. p. 2, citing Jackson v. Bank of America (1983) 141 Cal.App.3d 55, 58.) Absent an explanation (i.e., factual basis), Edward has failed to meet his burden.

Therefore, the motion is denied.

Conclusion

Based on the foregoing, the motion is denied without prejudice.