Judge: Elaine W. Mandel, Case: 22SMCV01941, Date: 2023-09-13 Tentative Ruling

Case Number: 22SMCV01941    Hearing Date: September 13, 2023    Dept: P

Ricks v. Schilobohm, case no. 22SMCV01941

Defendant Spell’s motion to set aside default – No opposition filed.

Hearing date 9/13/23

Defendant Spell, in pro per, seeks to set aside the default entered 7/25/23 in this motor vehicle accident matter. The motion is not opposed.

Under Cal. Code of Civ. Proc. §473(b), a judgment or other order may be set aside upon a showing of mistake, inadvertence, surprise, or excusable neglect. Under §473(d), the court may set aside a void judgment. Under Cal. Code of Civ. Proc. §473.5, a court may set aside a default judgment when service has not resulted in actual. Public policy favors trial on the merits, so relief should be liberally granted absent prejudice. Aldrich v. San Fernando Valley Lumber Co. (1985) 170 Cal.App.3d 725, 740.

Defendant states she did not receive notice of a ruling following her demurrer. She was asked to answer within 15 days. she did not appear nor file the answer within 15 days. default was entered 7/25/23. Defendant argues excusable neglect as a result of not receiving notice from the plaintiff. Spell decl., para. 2.

Relief is proper under Cal. Code of Civ. Proc. §473.5. Defendant moved to set aside within the time limit set forth in §473.5. Considering this evidence, the lack of opposition and the public policy in favor of resolving matters on the merits rather than by default, the motion is GRANTED. Judgment will be set aside. Defendant to file and serve the proposed answer that is attached to the motion. GRANTED.