Judge: Gary I. Micon, Case: 23CHCV01472, Date: 2024-03-06 Tentative Ruling

Case Number: 23CHCV01472    Hearing Date: March 6, 2024    Dept: F43

Dept. F43

Date: 3-6-24

Case # 23CHCV01472, Jesus Santana vs. Craig Brian Forry

Trial Date: N/A

MOTION TO SET ASIDE/VACATE DEFAULT

MOVING PARTY: Defendant Craig Brian Forry

RESPONDING PARTY: No response has been filed

RELIEF REQUESTED

Defendant is requesting that the Court enter an order setting aside or vacating the default entered against him

RULING: Motion granted

SUMMARY OF ACTION

On May 19, 2023, Plaintiff Jesus Santana filed his complaint with five causes of action for (1) Breach of fiduciary duty and duty of loyalty; (2) fraud-concealment; (3) negligence; (4) professional negligence; and (5) declaratory relief. These causes of action are related to an alleged amendment that Defendant Craig Brian Forry (Defendant) was retained to make to the living trust of Decedent Violet Evelyn Alberts.

Plaintiff filed a proof of service indicating that Defendant was served on October 7, 2023, by a registered process server. On December 12, 2023, Plaintiff filed a request for entry of default that was entered the same day. On December 29, 2023, Defendant filed a motion to set aside/vacate default.

Defendant claims that he did not learn of the proof of service and request for entry of default until his review of the Case Access on December 13, 2023, which he claims he does periodically due to the history between the parties. He attempted to meet and confer with Plaintiff’s attorney and requested a stipulation to set aside the default, but he did not receive any response from Plaintiff.

Defendant has provided the declaration of the account manager for the security company that handles security in the community where Defendant lives. The security company does not have any records of any visitor to Defendant’s residence on October 7, 2023, the date of purported service.

ANALYSIS

Request for Judicial Notice: Defendant has requested that the Court take judicial notice of several documents that have been field with this court and others. The Court takes judicial notice of these documents.

CCP Section 473(b) states as follows: 

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.

The law favors hearings on the merits, so any doubts as to the application of section 473 should be resolved in favor of the party seeking relief from default. (See Shapiro v. Clark (2008) 164 Cal.App.4th 1128, 1139-1140.)

In this case, Defendant certainly has surprise or excusable neglect if the complaint was never served on him, and he did not learn of the complaint until December 13. Defendant has also met the other requirements of CCP § 473 because he accompanied his motion with a copy of the demurrer and made the motion within six months of entry of default. Further, the law favors hearings on the merits, so any doubts should be resolved in Defendant’s favor

Defendant’s motion to set aside and vacate entry of default is granted. Defendant’s demurrer is deemed filed and may proceed with a hearing. The Court will set a date for the demurrer hearing at the hearing on this motion, as well as a briefing schedule for a supplemental opposition and reply.

Moving party to give notice.