Judge: Frank M. Tavelman, Case: 24NNCV05110, Date: 2025-03-14 Tentative Ruling

Case Number: 24NNCV05110    Hearing Date: March 14, 2025    Dept: A

MOTION TO SET ASIDE DEFAULT

NOTICE:

The Court is not requesting oral argument on this matter.  The Court is guided by California Rules of Court, Rule 3.1308(a)(1) whereby notice of intent to appear is requested.  Unless the Court directs argument in the Tentative Ruling, no argument is required and any party seeking argument should notify all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear and argue.  The tentative ruling will become the ruling of the court if no argument is received.  

Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412.

ALLEGATIONS: 

Yeong Take Youn (Plaintiff) brings this action against Edward Leavirne Wilson (Defendant) in connection with a January 23, 2023 motor vehicle incident. Plaintiff alleges he was injured by Defendant’s negligent operation of a motor vehicle causing it to collide with Plaintiff at the junction of I-210E and CA-2 in La Canada Flintridge, CA. (Compl. ¶ 3.)

On December 2, 2024, Plaintiff requested the entry of default against Defendant. The default was granted. On December 4, 2024, Defendant filed an Answer. On February 3, 2025, Plaintiff requested the entry of default judgment against Defendant. The default judgment was denied.

Before the Court is Defendant’s motion seeking to set aside the default pursuant to C.C.P. § 473(b) on the basis of attorney mistake. Plaintiff has filed no opposition to this motion. Pursuant to C.R.C. Rule 8.54(c), the failure to oppose a motion may be deemed consent to the motion being granted. 

ANALYSIS: 

I.                    LEGAL STANDARD 

C.C.P. § 473(b) has both a discretionary relief provision and a mandatory relief provision. (Jackson v. Kaiser Foundation Hospitals, Inc. (2019) 32 Cal.App.5th 166, 173.) The mandatory provision of C.C.P. § 473(b) reads, in pertinent part, as follows:

Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect. 

The general underlying purpose of C.C.P. § 473(b) is to promote the determination of actions on their merits. (Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830.)

II.                 MERITS

Defendant’s Counsel, Olga Garcia (Garcia), states she was assigned by Defendant’s insurer to be counsel for Defendant on November 22, 2024. (Garcia Decl.¶ 2.) Garcia states that upon being assigned to the case, she reviewed the docket and noticed that there was no proof of service. (Id. ¶ 3.) Garcia states she also reached out to Defendant to confirm she had authority to represent him, that he had been served, and that she could file a responsive pleading on his behalf. (Id. ¶¶ 2, 3.)

Garcia states she could not reach Defendant until after the Thanksgiving holiday. (Id. at ¶ 5.) On December 2, 2024, Garcia again checked the Docket and did not see a proof of service. (Id.) Garcia then reached out to Plaintiff’s counsel via email to request the proof of service and any accompanying documents as well as to request that default not be entered or contacting defense counsel before doing so. (Id. ¶ 4, Exh. B.) Garcia states this letter received no response. (Id.)

On December 3, 2024, Garcia was finally able to speak with Defendant, who informed Garcia that he was served by substituted service on or around October 21, 2024. (Garcia Decl. ¶ 5.) Garcia’s office then began drafting an Answer to the Complaint, which was filed on December 4, 2024. (Id. ¶ 6, Exh. D.) Garcia states she was unaware that, on December 2, 2024, Plaintiff had filed the Proofs of Service and requested entry of default against Defendant. (Id.) After filing the Answer, Garcia checked the docket again and saw the default request. (Id.) Garcia reached out to Plaintiff’s counsel to request the default be set aside via stipulation but received no response. (Id., Exh. C.)

Garcia finally states that because the Court accepted Defendant’s Answer, she mistakenly presumed that the request for default would be denied. (Id. at 9.) Upon realizing the request was granted, Garcia reached out to Plaintiff’s counsel to again discuss setting aside via stipulation, but Plaintiff’s counsel refused. (Id. ¶¶ 7-8, Exh. E.)

The Court finds the Garcia declaration sufficiently attests to attorney mistake in failing to respond to the Complaint. It appears that although Defendant was properly served and properly tendered the claim to his insurance, Kemper, his insurance did not timely respond to the allegations. (See Exh. E.) Mandatory relief under C.C.P. § 473(b) does not require an attorney’s mistake be excusable, nor does it require the attorney provide a reason that mistake occurred. (Martin Potts & Associates, Inc. v. Corsair, LLC (2016) 244 Cal.App.4th 432, 438.) Here, it is enough that Garcia attested to the mistake of her office in failing to file a responsive pleading when they were aware they represented Defendant in the matter within the time to respond.

Further, pursuant to C.R.C. Rule 8.54(c), Plaintiff’s failure to oppose this motion may be deemed consent to the motion being granted.  Plaintiff’s counsel refused to stipulate to set aside the judgment and stated in meet and confer that they intend to oppose a motion to set aside. (Exh. E.) Despite this, Plaintiff has rendered no opposition.

Accordingly, Defendant’s unopposed motion to set aside the default is GRANTED.

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records. 

ORDER 

Edward Leavirne Wilson’s Motion to Set Aside Default came on regularly for hearing on March 14, 2025, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows: 

THE MOTION TO SET ASIDE DEFAULT IS GRANTED.

THE CASE MANAGEMENT CONFERENCE SCHEDULED FOR MARCH 17, 2025 IS ADVANCED AND CONTINUED ON THE COURT’S OWN MOTON TO JULY 16, 2025 AT 9:00 AM.

DEFENDANT TO PROVIDE NOTICE. 

IT IS SO ORDERED.