Judge: Cynthia A Freeland, Case: 37-2022-00009522-CU-CL-NC, Date: 2024-05-24 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - May 23, 2024

05/24/2024  01:30:00 PM  N-27 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Cynthia A. Freeland

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Civil - Unlimited  Other Collections Motion Hearing (Civil) 37-2022-00009522-CU-CL-NC AMERICAN EXPRESS NATIONAL BANK VS SHIRLEY [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Vacate, 01/02/2024

Plaintiff American Express National Bank ('Plaintiff')'s motion to set aside and vacate judgment, and to dismiss this action without prejudice, is granted.

California Code of Civil Procedure ('CCP') § 473(b)'s provides in relevant part that '[t]he 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 made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.' Cal. Code Civ. P. § 473(b). 'The test of whether neglect was excusable is whether ' 'a reasonably prudent person under the same or similar circumstances' might have made the same error. [Citations.]' Luri v. Greenwald (2003) 107 Cal. App. 4th 1119, 1129 (quoting Bettencourt v. Los Rios Community College Dist. (1986) 42 Cal. 3d 270, 276). '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....'' Henderson v. Pacific Gas & Electric Co. (2010) 187 Cal. App. 4th 215, 229-230 (quoting 8 Witkin, Cal. Procedure (5th ed. 2008) Attack on Judgment in Trial, § 155, p. 749).

The court construes the lack of opposition by any interested party as a concession of the motion's merits. See San Diego Rules of Court, Rule 2.1.19.B. In addition, the uncontroverted evidence demonstrates that on March 11, 2022, Plaintiff commenced this action by filing a Complaint against Defendant Jensen Shirley aka Dr. Jensen H. Shirley ('Defendant') for common counts. See ROA No. 1; Anikstein Decl., ¶ 2. Defendant did not file an answer or other responsive pleading within the statutory time to do so. See Anikstein Decl., ¶ 3. On November 28, 2023, Plaintiff requested, and the court entered, Defendant's default. See ROA No. 37. That same day, Plaintiff filed a default judgment packet with the court. See ROA No. 41; Anikstein Decl., ¶ 4. On December 12, 2023, the court entered a $43,717.95 default judgment (the 'Judgment') in Plaintiff's favor and against Defendant. See ROA No.

38; Anikstein Decl., ¶ 5. Plaintiff now represents that it did not intend to seek Judgment against Defendant and thus the Judgment should be set aside and vacated under CCP § 473(b). See Anikstein Decl., ¶¶ 6-7. In the absence of opposition, the court finds that entry of Judgment in this matter was a result of Plaintiff's mistake and/or excusable neglect and thus must be set aside and vacated.

In light of the foregoing, the court grants the motion and: (1) sets aside and vacates the Judgment entered in this matter on December 12, 2023, and (2) dismisses this action without prejudice.

This is the tentative ruling for the hearing at 1:30 p.m. on Friday, May 24, 2024. If no party appears at Calendar No.: Event ID:  TENTATIVE RULINGS

3068624 CASE NUMBER: CASE TITLE:  AMERICAN EXPRESS NATIONAL BANK VS SHIRLEY [IMAGED]  37-2022-00009522-CU-CL-NC the hearing, this tentative ruling will become the order of the court as of May 24, 2024. If the parties are satisfied with the court's tentative ruling or do not otherwise wish to argue the motion, they are encouraged to give notice to the court and each other of their intention not to appear, though this notice is not required.

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