Judge Daniel M. Crowley, Case Number: 24STCV14045, Date: 2024-12-20 Tentative Ruling

Defendant Gary Richard Carlin’s motion to set aside the entry of default entered against him by pro per Plaintiff Dawn Elizabeth Carbajal on September 9, 2024, is granted. Defendant is ordered to file the responsive pleading attached to his motion, which is deemed filed as of the date of this ruling.

Defendant Gary Richard Carlin (“Carlin”) (“Moving Defendant”) moves for this Court to set aside the default entered against him on September 9, 2024, by pro per Plaintiff Dawn Elizabeth Carbajal on the grounds that default was entered due to mistake, accident, surprise, inadvertence, and excusable neglect, as well as extrinsic fraud and extrinsic mistake. (Notice of Motion, pgs. 1-2; C.C.P. §473.)

On June 5, 2024, Plaintiff filed her operative Complaint against Carlin, Valentin Urgils (“Urgils”), and Reyna Kramer (“Kramer”) (collectively, “Defendants”) alleging four causes of action. (See Complaint.)

On September 9, 2024, default was entered against Carlin. As of the date of this hearing no Default Judgment has been entered in this matter.

On October 1, 2024, Carlin filed the instant motion. Plaintiff filed her opposition on October 28, 2024. Defendant filed his reply on December 16, 2024.

The law favors judgments on the merits. Thus, on a motion for relief from default, “doubts must be resolved in favor of relief, with an order denying relief scrutinized [on appeal] more carefully than an order granting it.” (Lasalle v. Vogel (2019) 36 Cal.App.5th 127, 134.)

The trial court has broad discretion to vacate the judgment and/or the clerk’s entry of default that preceded it. However, that discretion can be exercised only if the moving party establishes a proper ground for relief, by the proper procedure, and within the proper time limits. (See Cruz v. Fagor America, Inc. (2007) 146 Cal.App.4th 488, 495.)

The court is empowered to relieve a party or his legal representative “upon any terms as may be just . . . from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” (C.C.P. §473(b).)

C.C.P. §473(b) consists of two distinct parts: “a discretionary provision, which applies permissively, and a mandatory provision, which applies as of right.” (Minick v. City of Petaluma (2016) 3 Cal.App.5th 15, 25-26; Bailey v. Citibank, N.A. (2021) 66 Cal.App.5th 335, 348.)

The reference to “judgment . . . order or other proceedings” allows relief both from default judgments and from the entry of default that preceded it. It also includes any step taken in a case, whether by the court or by one of the parties: “Anything done from the commencement to the termination is a proceeding.” (Zellerino v. Brown (1991) 235 Cal.App.3d 1097, 1105.)

Evidence that a defendant was seriously ill, or feeble, or unable to understand that he was being served with process, is sufficient to justify discretionary relief under § 473(b). Such evidence shows “excusable neglect” in allowing default to occur. (See Kesselman v. Kesselman (1963) 212 Cal.App.2d 196, 207-208.)

Carlin’s counsel declares on information and belief that, “Gwyn Carlin, the elderly wife of [Carlin] . . . was seriously injured in June losing the usage of her left arm for an extended period of time. Gary Carlin spent many days a week out of the office in June, July and August to care for his wife, including but not limited to doctor’s visits, hospital visits, therapy, meals, etc.” (Decl. of Deveraux ¶3.) Carlin’s counsel declares on information and belief that “in addition to Mr. Carlin’s care to his wife, that both were recently involved in an auto accident that totaled their vehicle in August.” (Decl. of Deveraux ¶4.) Plaintiff’s counsel declares on information and belief that these two intervening incidents in Carlin’s life is the reason for the mistake, accident, surprise, inadvertence and excusable neglect, as well as extrinsic fraud and extrinsic mistake. (Decl. of Deveraux ¶5.)

Carlin sufficiently demonstrates a reasonable excuse for the entry of default, based on the fact that his attorney’s declaration states Carlin spent many days a week out of the office in June, July and August. Substituted service was effected on Carlin at his place of work on June 27, 2024. (9/9/24 Proof of Substituted Service.) Here, Carlin was distracted by caring for his seriously injured wife for over three months, and then was involved in a car accident in August, which totaled his car. Carlin was not merely “busy” and “forgot” about the lawsuit; Carlin was faced with a series of traumatic experiences that directed his attention away from his place of work, where the Complaint was served.

Further, Carlin attaches his responsive pleading to this motion. (Motion, Exh. A.) Carlin may separately file his general denial.

Accordingly, Carlin’s motion is granted. The entry of default against Carlin entered on September 9, 2024, is set aside.

Carlin’s motion to set aside the entry of default entered on September 9, 2024, is granted.

Carlin may separately file his responsive pleading, which is deemed filed as of the date of this ruling.

Hon. Daniel M. Crowley

Judge of the Superior Court