Judge: Craig Griffin, Case: "Cavalry SPV I, LLC v. James Bowie", Date: 2022-10-17 Tentative Ruling

Defendant James Bowie’s Motion to Set Aside Clerk’s Default and Default Judgment is GRANTED.

Code Civ. Proc. § 473(b) states in part that 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.”  If a motion to vacate default is not based upon an attorney affidavit of fault, relief under CCP § 473(b) is discretionary. CCP § 473(b); see Lorenz v. Commercial Accept. Ins. Co. (1995) 40 Cal.App.4th 981, 989. 

“[T]he policy of the law is to have every litigated case tried upon its merits, and it looks with disfavor upon a party, who, regardless of the merits of the case, attempts to take advantage of the mistake, surprise, inadvertence, or neglect of his adversary.”  Weitz v. Yankosky, (1966) 3 Cal. 2d 849, 855 (1966)  “ ‘[T]he provisions of section 473 of the Code of Civil Procedure are to be liberally construed and sound policy favors the determination of actions on their merits.’ [Citation.]” (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 256.) “[B]ecause 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.” (Elston v. City of Turlock (1985) 38 Cal.3d 227, 233.)

Defendant acknowledges that he was served with the summons and related documents on Sept 16, 2021. (Bowie Decl. at ¶2) Defendant states that he reviewed the notice of case management conference and understood the document to mean that the CMC would be the first “event” in the case and that was the time he would find out what the case was about and that would be the time he could find out how to proceed.  He states that he was not aware of the requirement set forth in the summons to file an answer or response within 30 days. (Bowie Decl. at ¶6)  Defendant states that he logged into the court’s remote video system for the CMC on 1/28/22 as stated in the notice but his case was not called.  (Bowie Decl. at ¶4) 

Defendant was clearly confused by the documents he received.  This confusion would likely have been resolved if plaintiff had complied with the requirements of rule 3.724 of the California Rules of Court which requires a meet and confer in advance of the Case Management Conference.  (¶19 of RP’s CMC statement left blank)  Plaintiff also states that it believes defendant received its Case Management Statement in advance of the 1/28/22 CMC.  (Brar Decl. at ¶11)  However, if true, this would have caused further confusion because plaintiff states in its CMC statement stated that all parties had been served and appeared and does not mention the entry of a default. (ROA #12, ¶3) 

The Court finds the motion timely filed and that the declaration of James Bowie establishes that the failure to timely file an answer was due to his “mistake, inadvertence, surprise, or excusable neglect.”  In light of these findings, and the liberal policy in allowing claims to be tried on the merits, sufficient cause exists to grant the motion.

The Motion is GRANTED and the default entered 1/18/22 and the default judgment entered 1/25/22 are vacated.  Plaintiff is directed to file the proposed Answer attached to his declaration within 14 days.

The Court schedules a Case Management Conference for January 13, 2023, at 9:30 a.m. in Dept. N17. 

Moving party to give notice.