Judge: Curtis A. Kin, Case: 22STCV22140, Date: 2022-12-15 Tentative Ruling

Case Number: 22STCV22140    Hearing Date: December 15, 2022    Dept: 72

MOTION TO SET ASIDE ENTRY OF DEFAULT

Date:               12/15/22 (8:30 AM)

Case:               Handcrafted Model Ships v. JL & Son’s Transport, et al. (22STCV22140)

TENTATIVE RULING:

Defendants JL & Son’s Transport, Inc., Jose L. Reynoso, and Maria Luz Reynoso’s Motion to Set Aside Entry of Default is GRANTED IN PART.

Defendants JL & Son’s Transport, Inc. (“JLS”), Jose L. Reynoso, and Maria Luz Reynoso move to set aside the defaults entered against them on September 12, 2022.

As a preliminary matter, the declaration of defendant Jose L. Reynoso in support of the motion was untimely filed and served by email on November 28, 2022. Based on the hearing date of December 15, 2022, the deadline to serve the declaration by email was November 17, 2022. (CCP §§ 1005(b) [deadline to serve and file motions is 16 court days before hearing]; 1010.6(a)(4)(B) [two court days added for email].) Because plaintiff Handcrafted Model Ships, LLC was able to address the substantive merits of the declaration of Mr. Reynoso (Opp. at 2:26-3:7), the Court exercises its discretion to consider the untimely declaration. (Rule of Court 3.1300(d) [“No paper may be rejected for filing on the ground that it was untimely submitted for filing. If the court, in its discretion, refuses to consider a late filed paper, the minutes or order must so indicate”].)   

In the moving papers, defense counsel submits a declaration in support of the motion. Defense counsel only seeks to introduce the demurrer and motion to strike that defendants would file as a response to the Complaint. (Campo Decl. ¶¶ 2, 3 & Exs. A, B.) Defense counsel also indicates that they were retained after October 18, 2022, which was after plaintiff informed defendants’ insurer of the entry of default and forthcoming entry of default judgment. (Campo Decl. ¶ 6.)

Defense counsel does not attest to any mistake, inadvertence, surprise, or neglect prior to September 12, 2022 that caused default to be entered against defendants. Accordingly, defendants may not avail themselves of mandatory relief under CCP § 473(b) based on an attorney affidavit of fault. (See CCP § 473(b) [providing for relief from default based on attorney affidavit “unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect”].)

The only relief thus available under CCP § 473(b) is discretionary relief. “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.” (CCP § 473(b).)

Mr. Reynoso avers that he is the owner of JLS and the husband of Maria Luz Reynoso. (J. Reynoso Decl. ¶ 1.) Mr. Reynoso understands that, on July 21, 2022, defendants were served with the summons and Complaint in the instant action. (J. Reynoso Decl. ¶ 2.) Mr. Reynoso states that he may have not seen or read the summons or Complaint. (J. Reynoso Decl. ¶¶ 3, 5.) Mr. Reynoso thought that plaintiff would send over any documents that he received to his insurance company, which was helping him in the matter at issue in the Complaint. (J. Reynoso Decl. ¶ 5.)

“[W]hen a party in default moves promptly to seek relief, very slight evidence is required to justify a trial court's order setting aside a default.” (Shamblin v. Brattain (1988) 44 Cal.3d 474, 478, citing Elston v. City of Turlock (1985) 38 Cal.3d 227, 233.) As stated above, default was entered against defendants on September 12, 2022. On October 18, 2022, plaintiff notified defendants’ insurer of the entry of defaults, after which the insurer retained defense counsel. (Campo Decl. ¶ 6.) The motion was promptly filed on November 9, 2022, less than six months after entry of default and 22 days after defendants’ insurer learned of plaintiff’s action.

When the totality and quality of evidence before the Court is considered, the Court exercises its discretion to set aside the defaults against JLS and Mr. Reynoso in furtherance of the policy of allowing disputes to be resolved on the merits. Mr. Reynoso, the owner of defendant JLS, admits to mistake and inadvertence in assuming that plaintiff would send documents to defendants’ insurer. (J. Reynoso Decl. ¶ 6.) Due to this mistake and inadvertence, defendants failed to respond to the Complaint, causing default to be entered against defendants.

With respect to defendants JL & Son’s Transport, Inc. and Jose L. Reynoso, the motion is GRANTED. The defaults entered against JL & Son’s Transport, Inc. and Jose L. Reynoso on September 12, 2022 are hereby SET ASIDE.

With respect to defendant Maria Luz Reynoso, Ms. Reynoso did not submit any declaration demonstrating how entry of default against her was due to her mistake, inadvertence, surprise, or excusable neglect. (CCP § 473(b).) Mr. Reynoso merely declares that he is the husband of Ms. Reynoso and nothing more. (J. Reynoso Decl. ¶ 1). While Mr. Reynoso also declares that, at the time “Defendants” were served with the summons and Complaint, he “did not understand that there was a lawsuit filed against us” (J. Reynoso Decl. ¶ 2), Mr. Reynoso makes no averment regarding why the entry of default against Ms. Reynoso was the result of his mistake, inadvertence, surprise, or excusable neglect. Indeed, Mr. Reynoso makes no averment regarding how he was responsible for responding to litigation on behalf of Ms. Reynoso. This contrasts with defendant JLS, on whose behalf Mr. Reynoso can act as its owner. (J. Reynoso Decl. ¶ 1.)

Because the declarations filed in support of this motion do not indicate how the default entered against Ms. Reynoso was the result of any mistake, inadvertence, surprise, or excusable neglect, the motion is DENIED as to defendant Maria Luz Reynoso.

Within five (5) days hereof, defendants JL & Son’s Transport, Inc. and Jose L. Reynoso are ordered to file the demurrer and motion to strike attached to the declaration of their counsel on their behalf only. The demurrer and motion to strike shall be on their behalf only, as Maria Luz Reynoso remains in default.