Judge Eddie C. Sturgeon, Case 37-2022-00039925-CU-BC-CTL 2023-09-15 Tentative Ruling

Judge: Eddie C. Sturgeon, Case: 37-2022-00039925-CU-BC-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 - Unlimited Breach of Contract/Warranty Motion Hearing (Civil) 37-2022-00039925-CU-BC-CTL NEBO LLC VS EL PASO OIL [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Set Aside Default, 02/02/2023

Defendants El Paso Oil dba El Paso Oil, Inc. and Michael Whitney's Motion to Set Aside Default is GRANTED. Plaintiff's request for judicial notice is granted. The court will hear from the parties regarding the necessity of amending Plaintiff's name in this lawsuit.

Code of Civil Procedure section 473(b) states that: 'The court may, upon any terms as may be just, relieve a party . . . 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 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.' '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, Defendants have supplied adequate evidence of mistake regarding the need to respond to this action. Defendants also acted without delay in seeking to set aside default. At the time Defense counsel first reached out to Plaintiff's counsel regarding the setting aside of the default, it had not even been entered by the clerk of court. (Compare ROA 21, Miller Decl., ¶¶ 4-7, Ex. P with ROA 18 [Request for Entry of Default].) The court discerns no prejudice to Plaintiff by proceeding on the merits.

Additionally, even assuming there is no inconsistency or defect related to Plaintiff's name in this lawsuit and the certificate of registration obtained from the Secretary of State, it is undisputed that Plaintiff had no certificate of registration at the time it obtained default. While an unregistered foreign business may commence an action subject to satisfying certain conditions (United Medical Management, Ltd. v. Gatto (1996) 49 Cal.App.4th 1732, 1739-1740), the court finds that such an entity may not obtain default without obtaining a certificate of registration.

The motion is granted.

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