Judge: David A. Hoffer, Case: 30-2022-01246395, Date: 2023-07-31 Tentative Ruling

Defendant Michael Krieg Oltmanns’ (“Defendant”) Motion to Set Aside Default (“Motion”) is GRANTED.

The court finds Defendant’s Motion met the requirements of Civ. Proc. Code § 473(b) for setting aside the default.  Additionally, nothing Defendant himself did caused the default to be taken against him.  (Civ. Proc. Code § 473(b); Rogalski v. Nabers Cadillac (1992) 11 Cal. App. 4th 816, 819-20.)  The court also finds there is no evidence of any prejudice to plaintiffs Kim O’Neil and Thomas O’Neil (“Plaintiffs” together) in granting this Motion.

The Notice of Motion is sufficient for purposes of the present Motion and Civ. Proc. Code § 1010 does not support denying the Motion.  (Golf & Tennis Pro Shop, Inc. v. Superior Ct. (2022) 84 Cal. App. 5th 127, 137–38.)

While Plaintiffs requested $5,225.25 in attorney fees and costs if the Motion is granted, the court finds that sum to be in excess of the $1,000 penalty permitted by Civ. Proc. Code § 473(c).  Furthermore, many of the cited fees could have been avoided had the parties simply agreed to setting aside the default.  With that said, Defendant’s insurance carrier AAA, which was representing Defendant in the preliminary negotiations and early stages of the case, was at fault for the default.  As such, the court will impose a penalty as to AAA in the amount of $750 payable to Plaintiffs.

The court hereby orders the default taken against Defendant to be set aside.  Defendant is ordered to file his answer to the complaint within 10-days of this hearing.

Defendant is ordered to give notice of this ruling.