Judge: Eddie C. Sturgeon, Case: 37-2022-00036268-CL-PO-CTL, Date: 2023-09-15 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - September 14, 2023

09/15/2023  09:00:00 AM  C-67 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Eddie C Sturgeon

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Civil - Limited  PI/PD/WD - Other Motion Hearing (Civil) 37-2022-00036268-CL-PO-CTL SMALLEY VS GONZALES [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Set Aside Default, 03/28/2023

Defendant Jorge Nepomuceno Gonzalez's Motion to Set Aside Default is GRANTED. Defendant's request for judicial notice is granted. In addition to providing the below reasons for its ruling, the court inquires as to the result of the OSC re: dismissal hearing that was set for April 21, 2023 in Judge Bowman's department.

When a party did not receive actual notice of a lawsuit, a default and/or default judgment may be set aside. (Code Civ. Proc., § 473.5.) Actual notice need be accomplished by personal service. Substitute service is also acceptable. Where evidence is in conflict and '[t]he trial court could reasonably conclude the [defendants] had actual notice in time to defend,' the trial court has discretion to deny the motion for relief from default. (Ellard v. Conway (2001) 94 Cal.App.4th 540, 547.) The court has discretion to weigh the parties' competing declarations. (Griffith Co. v. San Diego Col. for Woman (1955) 45 Cal.2d 501, 508.) 'When the moving party promptly seeks relief and there is no prejudice to the opposing party, very slight evidence is required to justify relief. We will more carefully scrutinize an order denying relief than one which permits a trial on the merits.'' (Mink v. Superior Court (1992) 2 Cal.App.4th 1338, 1343.) Relief 'should be liberally applied and the power freely exercised to carry out the policy in favor of trial on the merits.' (Carrasco v. Craft (1985) 164 Cal.App.3d 796, 803 [internal quotations omitted].) Here, Defendant has provided declarations that he was not provided with notice of the lawsuit or the default, among other procedural irregularities. While Plaintiff belatedly filed an opposition on September 13, 2023, she did not substantively oppose Defendant's arguments. The motion is granted.

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