Judge: Douglas W. Stern, Case: 23STCP00261, Date: 2023-09-20 Tentative Ruling

Case Number: 23STCP00261    Hearing Date: September 20, 2023    Dept: 68

Motion to Set Aside/Vacate Default

Luz Adriana Meono, et al. vs. Rosa Granados, et al., 23STCP00261

Moving Party: Defendant Miguel A. Lopez

Background

            This Motion shall be DENIED WITHOUT PREJUDICE for the simple reason that Defendant has, as of the date of this write-up failed to comply with the mandate of Code of Civil Procedure § 473(b):

“Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted.”  (See detailed discussion below.)

Self-represented Defendant Miguel A. Lopez (Defendant) filed this motion to set aside/vacate default on August 9, 2023, pursuant to CCP § 473(b). Defendant argues that the default should be set aside because of mistake, inadvertence, surprise, or excusable neglect. His basis for arguing this is that on or about February 15, 2023, he attempted to file an answer with the Court by placing the document in a court drop box. On March 24, 2023, he received information indicating Plaintiff was seeking to file a default. A few days later, on March 27, 2023, Defendant checked with the Court and learned that his answer was not on the Court docket and that a default had been entered against him on March 20, 2023.

Plaintiffs Luz Adriana Meono and Ricardo H. Meono argue that Plaintiff’s motion should be denied because he has provided no evidence of the answer he allegedly tried to file. They also argue that one attempt is not enough. They also claim that his motion was not made within a reasonable time after becoming aware that default was entered.  And they note that Defendant has not attached a copy of the proposed pleading.

Analysis

CCP § 473(b) states as follows:

“The court may, upon any terms as may be just, relieve a party…from a judgment, dismissal, order, or other proceeding taken against him…through his…mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.”

The Court recognizes that as a self-represented litigant, Defendant is not conversant with the rules that govern civil cases.  The Court views Defendant’s conduct through that lens.  While Defendant’s delay in filing this motion was lengthy, the Court concludes that Defendant’s motion was timely.  It was made within six months of when that default had been entered - March 22, 2023.  Defendant filed this motion on August 9, 2023.  (The Court also notes that Defendant participated in the May 31, 2023 CMC, discussed below.)

Defendant’s declaration states that “[u]pon being served I had initially attempted to file an answer with the Superior Court by filing an Answer and placing said documents within the courthouse bin.”  (Lopez Decl., ¶¶ 4-5.) While Plaintiffs take issue with the idea that Defendant attempted to file the answer only once, Defendant, a self-represented lay person, might not have reason to suspect that there was anything wrong with his method of filing until learning that default had been entered. The conduct of Defendant rises to the level constituting “excusable neglect” or “mistake” given the totality of the circumstances.  Therefore, the Court will not deny the motion on this ground.

It is not lost on the Court that on May 31, 2023 the Court conducted a Case Management Conference.  Defendant participated in that hearing.  The Court’s Minute Order reflects the fact that the default entered March 22, 2023 were discussed, and “[t]he parties are encouraged to try to work together in regards to the entry of default.  If a resolution cannot be reached, defendant may file a noticed motion.”  This fact regarding the May 31, 2023 hearing cuts in both directions.  It shows that Defendant intended to participate in the litigation.  And it also shows that since May 31, 2023 he was on notice of the default situation and he still took 2 months to file his motion.

On balance, the Court concludes that IF Defendant had complied with his obligation to file a proposed Answer (or other responsive pleading) it would grant the motion.

BUT Defendant did not include a proposed answer with his motion or at any  time after the motion was filed. The declaration accompanying the motion mentions an answer attached as Exhibit A, but there is no Exhibit A attached to the declaration. (Lopez Decl., ¶¶ 6-7.)  Plaintiff noted this defect in the Opposition at page 1:20.  Still no Answer has been filed by Defendant.

“The requirement that a verified pleading accompany the application for relief or that one be on file is mandatory, and failure to comply necessarily results in a denial of relief. Nevada Bank of California v. Dresbach, 63 Cal. 324, 325; Bailiff v. Hildebrandt, 47 Cal.App. 564, 566, 191 P. 42; La Bonte & Ransom Co., Inc., v. Scellars, 90 Cal.App. 183, 185, 265 P. 550.”  Daniels v. Daniels (1955) 136 Cal.App.2d 224, 228.

More recent cases have given this “accompany” requirement a more liberal interpretation.  In Puryear v. Stanley (1985) 172 Cal.App.3d 291, 293-295 the motion to set aside the default was filed within the 6 month period, but no proposed answer was served until after the 6 month period had run.

“Construing section 473 “liberally with a view to substantial compliance,” the Supreme Court has interpreted the term “accompanied” to permit consideration of the merits of a motion for relief from default when the proposed answer was served on the adverse party and submitted to the trial court two days before service of the motion.  (County of Los Angeles v. Lewis (1918) 179 Cal. 398, 177 P. 154.)  Substantial compliance with section 473 has also been found when the motion to set aside default was accompanied by a motion for an order continuing time within which to plead, and the proposed answer was filed before hearing on the motion to set aside default. (Sousa v. Capital Co. (1963) 220 Cal.App.2d 744, 759–761, 34 Cal.Rptr. 71.)”  Puryear v. Stanley (1985) 172 Cal.App.3d 291, 294.

In County of Stanislaus v. Johnson (1996) 43 Cal.App.4th 832, 838 the Court held:

“The objectives of the “accompanied by” requirement, i.e., a screening determination that the relief is not sought simply to delay the proceedings, is satisfied by the filing of a proposed answer at any time before the hearing. Accordingly, we agree with Job that a motion for relief from default may substantially comply with section 473—that is, it may give adequate notice that the judgment is under attack and the basis for the attack—even if a proposed answer is not attached to the motion when it is filed.  (See Job v. Williams, supra, 209 Cal.App.3d at p. 341, 257 Cal.Rptr. 210.)  A party substantially complies with the “accompanied by” requirement by filing the proposed answer sufficiently in advance of the hearing to permit the other party to prepare for the hearing.”

Nonetheless, Defendant has filed nothing.  Therefore, based on the failure of Defendant to have filed any responsive pleading, the Court shall DENY the motion without prejudice.

Order

            Defendant’s motion to set aside default is DENIED without prejudice.

[posted 9/15/23 12:37 p.m.]