Judge: Elaine W. Mandel, Case: 23SMCV05503, Date: 2024-10-08 Tentative Ruling

Case Number: 23SMCV05503    Hearing Date: October 8, 2024    Dept: P

Tentative Ruling

Plascencia v. Gonzalez, Case no. 23SMCV05503

Hearing date October 8, 2024

Defendant’s Motion to Set Aside Default

Plaintiff sued defendant for breach of contract and negligence after defendant entered into a contract with plaintiff to remodel plaintiff’s home. Default judgment was entered on 7/3/2024. Per this motion, filed 9/6/24, the defendant moves under Cal. Code Civ. Proc. §473.5 to set aside the default. Defendant offered a proposed answer and cross-complaint. Plaintiff opposes the motion and requests attorney’s fees under Cal. Code Civ. Proc. §473(c)(1) if the motion is granted.

Under Cal. Code of Civ. Proc. §473(b), the court may set aside a dismissal taken through “mistake, inadvertence, surprise, or excusable neglect.” Relief under §473 should be liberally granted because public policy favors resolution of disputes on the merits, rather than through technical default. E.g., Fasuvi v. Permatex, Inc. (2008) 167 Cal.App.4th 681, 685.

Defendant argues he did not receive notice of the lawsuit. Defendant argues he has a meritorious defense and has claims against plaintiff, and as such seeks equitable relief from the default. Defendant argues he was not properly served and did not receive notice of the lawsuit until his bank account was levied pursuant to the default. Decl. Gonzalez para. 4. Defendant was given an unmarked envelope by plaintiff’s wife on 1/31/2024. Decl. Gonzalez para. 3. Defendant was informed the envelope was from the owner of the property that plaintiff leases, Jackie Fox, and the contents were for him. Decl. Gonzalez para. 3. 

Defendant called Fox without opening the envelope to inquire about its contents and was told Fox had not sent him any correspondence. Decl. Gonzalez para. 3. Defendant returned the envelope to plaintiff’s mailbox unopened. Decl. Gonzalez para. 3. Defendant argues he never received notice via mail or email, and the addresses listed on the request for entry of default are incorrect. Decl. Gonzalez para. 4. 

Plaintiff argues defendant was informed of service when he was handed the envelope. Decl. Plascencia paras. 10-11. Plaintiff argues defendant purposefully attempted to avoid service and consciously failed to file an answer. See Fidelity Federal Savings & Loan Ass'n. of Glendale v. Long (1982) 175 Cal.App.2d 149, 155-156. 

Plaintiff further argues all defendant had to do was open the envelope or respond to the notice of default mailed to him. Plaintiff asserts the default was the result of inexcusable neglect.

California has a strong preference for resolving issues on their merits and not via default. Defendant’s actions in seeking counsel and preparing a response demonstrate that defendant is ready and willing to participate in the judicial process. GRANTED.

The court DENIES plaintiff’s request for attorney’s fees under Cal. Code Civ. Proc. §473(c)(1). While the court has the discretion to impose a penalty against offending parties and otherwise award relief, defendant provided evidence that he did not act in bad faith. It would be inequitable to award fees when the circumstances giving rise to this motion were not under his control.