Judge: H. Jay Ford, III, Case: 22SMCV00705, Date: 2023-02-21 Tentative Ruling

Case Number: 22SMCV00705    Hearing Date: February 21, 2023    Dept: O

  Case Name:  GSW Creative Corporation, et al. v. Kadison, et al.

SUBJECT:                 MOTION TO SET ASIDE DEFAULT AND FOR LEAVE TO DEFEND THE ACTION

MOVING PARTY:   Defendant Joshua Kadison

RESP. PARTY:         Plaintiffs GSW Creative Corporation and Alternative Medicine Group, Inc.

TENTATIVE RULING

            Defendant Kadison’s Motion to Set Aside Default and for Leave to Defend the Action is DENIED.

            Defendant Kadison’s declaration fails to set forth any facts that would support a finding of excusable neglect, reasonable mistake, inadvertence or surprise.  See Dec. of J. Kadison, ¶¶1-14.  Kadison testifies that he was in pro per from 5-4-22 through 9-2022.  Id. at ¶12.  Kadison testifies that Plaintiffs knew he was represented by counsel during lease negotiations.  Id. at ¶11.  Kadison testifies that Plaintiffs never notified Defendant’s counsel during lease negotiations of their intent to file suit.  Id.

            CCP §473(b) is not a “get-out-of-jail-free card for parties who later come to regret past inaction or sitting on their rights.”  McClain v. Kissler (2019) 39 Cal.App.5^th 399, 414.  At the very least, Kadison was required to provide some reasonable excuse for his failure to respond.  Kadison fails to meet this low threshold.  Kadison’s testimony does not identify any basis for his failure to file a timely answer.  Kadison’s testimony also fails to identify any wrongdoing by the Plaintiffs in connection with the filing or service of this complaint. 

“It is the duty of every party desiring to resist an action or to participate in a judicial proceeding to take timely and adequate steps to retain counsel or to act in his own person to avoid an undesirable judgment. Unless in arranging for his defense he shows that he has exercised such reasonable diligence as a man of ordinary prudence usually bestows upon important business his motion for relief under section 473 will be denied.  Courts neither act as guardians for incompetent parties nor for those who are grossly careless of their own affairs.”  Id. at 415. 

            Kadison argues that he was self-represented when the answer was due, and he was mistaken that he was entitled to 30 days to file an answer.  However, Kadison’s self-representation does not excuse his failure to read the summons served on him.  “[M]ere self-representation is not a ground for exceptionally lenient treatment…A doctrine generally requiring or permitting exceptional treatment of parties who represent themselves would lead to a quagmire in the trial courts, and would be unfair to the other parties to litigation.”  Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984–985.

Kadison’s ignorance of the 5-day deadline to respond to the complaint was also unreasonable.  The summons indicates that an answer must be filed within 5 days.  “5 DAYS” is in all caps and the summons instructs the defendant that the 5 days do not include Saturdays, Sundays or other judicial holidays. See Summons filed on 5-17-22.  The summons also indicates that a written response in proper legal form must be submitted or the defendant could lose the case by default.  Id.  Given this information, it was unreasonable for Kadison to believe that the 30-day deadline applied to ordinary civil cases applied here.  If Kadison did not read the summons, he did not act with reasonable diligence. 

 “Rappleyea did not indicate courts should myopically focus on that policy alone and grant relief in every case or that courts should be unceasingly lenient with careless litigants. On the contrary, our high court warned that it was not suggesting litigants, even self-represented litigants, could ignore the rules and then ask for leniency.”  McClain, supra, 39 Cal.App.5th at 416.  Kadison fails to identify any mistake, excusable neglect, inadvertence or surprise that would justify setting aside the default.  The policy favoring resolution of litigation on the merits does not excuse Kadison from making such a showing.  The motion is DENIED.