Judge: H. Jay Ford, III, Case: 24SMCV00899, Date: 2025-05-09 Tentative Ruling

Case Number: 24SMCV00899    Hearing Date: May 9, 2025    Dept: O

  Case Name:  Loaded, LLC v. End Game Talent, LLC

SUBJECT:                 MOTION TO SET ASIDE DEFAULT

MOVING PARTY:   Defendant End Game Talent, LLC

RESP. PARTY:         Plaintiff Loaded, LLC

UPDATED TENTATIVE RULING       

            Defendant End Game Talent, LLC Motion to Set Aside Default on Complaint pursuant to CCP § 473(b) is DENIED.

            Discretionary relief under CCP§ 473(b) is time-barred because the motion was filed more than six months after the default was entered.  

            Mandatory relief under CCP § 473(b) based on the fault of the defendant’s attorney cannot be granted because the motion, when filed, was not “accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise or neglect.” A motion based mandatory relief must be filed “no more than six months after entry of judgment…” Separately filing the required attorney affidavit, after the motion was filed; and more important, more than six months after the deadline to file the motion has expired, does not satisfy the requirements under Section 473(b) for mandatory relief.  Defendant’s belated declaration from Patrick Gangitano (filed on 5/2/2025) is not timely under Section 473(b).

            So, as the Court observed at the brief hearing on March 20, 2025, the only possible basis for Defendant to seek to set aside the default judgment is equitable relief based on extrinsic fraud or mistake.  And it was to consider only that basis was what the Court needed more time to consider.  

            Contrary to the implication in the belated declaration of Defendant’s current counsel, Lance Aduba, (filed on 4/30/2025), the Court did not grant Defendant leave to file new declarations. To the contrary, the Court recalls Defendant’s counsel offered to submit further brief on the issue of equitable relief, which the Court declined. The Court specifically ordered “no further briefing” as noted in the 3/20/2025 minute order. Indeed, had the Court had time to consider Defendant’s request for equitable relief, the motion would have been denied in its entirety for the reasons stated below. The Court, therefore, sustains Plaintiff’s objections to those late filed declarations.   

            To obtain equitable relief Defendant must show; (1) a meritorious defense; (2) a legitimate excuse for not defending the action; and (3) diligence in trying to set aside the default.  Sporn v. Home Depot USA, Inc., 126 Cal. App. 4th 1294, 1300 (2005); Luxury Asset Lending, LLC v. Philadelphia Television Network, Inc. (2020) 56 Cal.App.5th 894, 911. The Court need not analyze whether a meritorious defense exists, because Defendant fails to meet the second and third elements for granting equitable relief.

            The Court denies equitable relief here because there is no admissible and/or persuasive evidence showing a legitimate excuse for not defending the action or that Defendant acted with diligence is seeking to set aside the default judgment. In that regard, Plaintiff’s hearsay and foundation objections nos. 1, 2, 3 and 4 to the declaration of Scott Ball are sustained.

            Defendant has not persuasively shown Mr. Ball’s inaction after learning in March 2024 that Mr. Gangitano has been served with the summons and complaint against Defendant was reasonable. Nor has Defendant persuasively shown Mr. Ball’s inaction after he was told a default judgment had been entered was reasonable.  Defendant does not offer any explanation or evidence as to what occurred between 3-19-24 and 8-25-24, when Mr. Ball declares he learned about the default judgment, to justify the delay in communication between End Game and counsel prior to entering of default. (Ball Decl., ¶¶ 5–7.) Moreover, Mr. Ball’s uncorroborated explanation that why he waited another two months for Mr. Gangitano to file the motion to set aside the default, and did so only after the Court issued a writ of execution on the judgment on November 25, 2024, is not persuasive.

The Court’s equity power “must be considered narrower, not wider,” than the statutory power. (Orange Empire Nat. Bank, supra, 259 Cal.App.2d at p. 352.)  Although is also “the policy of the law to favor, whenever possible, a hearing on the merits,” End Game does not provide admissible or persuasive evidence to make a reasonable showing of extrinsic mistake warranting equitable relief. (Ibid.)

End Game’s Motion to Set Aside Default on Complaint pursuant to CCP § 473(b) or alternatively under equitable relief is DENIED.