Judge Jill Feeney, Case 22STCV19364 2023-02-09 Tentative Ruling

Department 30, Spring Street Courthouse

Motion to Set Aside Entry of Default filed by Defendant Facundo Santana

The motion is granted. Default is set aside.

Defendant must file and serve an answer within 15 days after the date of this order.

Moving party to provide notice and to file proof of service of such notice within five court days after the date of this order.

This is an action for negligence arising from a vehicle collision which took place in May 2021. Plaintiff Craig Moffett filed his Complaint against Facundo Santana on June 14, 2022.

On August 25, 2022, the Court entered default against Defendant.

On September 26, 2022, Defendant filed the instant motion to set aside default.

Defendant moves to set aside default against him on the grounds that default was entered due to his counsel’s mistake, inadvertence, surprise, or neglect.

Per Code of Civil Procedure, section 473, subdivision (b), a court may relieve a party or his counsel from a judgment against him because of his “mistake, inadvertence, or excusable neglect.” When a party seeks relieve “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.” (Code Civ. Proc. section 473) And when such relief is available, “there is a strong public policy in favor of granting relief and allowing the requesting party his or her day in court.” (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981-982, internal quotations omitted.) A proposed answer, motion, or other pleading proposed to be filed in the action was required to be served and filed with the motion to set aside the default and default judgment. (Code Civ. Proc. section 473 subd. (b))

Defendant moves to set aside default judgment on the grounds that default was entered due to his counsel’s surprise, inadvertence, or mistake.

Defendant’s counsel testifies that she is a litigation specialist with Kemper, Employees of Defendant’s insurer, Infinity Insurance Company. (Zube Decl., ¶1.) On August 8, 2022, counsel’s office received a latter from Plaintiff’s counsel stating Defendant had been served and his answer was overdue. (Id., ¶2.) Plaintiff’s counsel would request a default if Defendant did not answer by August 18, 2022. (Id.) Kemper immediately assigned the case to counsel, who replied to Plaintiff’s counsel via email and asked for an extension to file an answer. (Id., ¶3.) Counsel was unexpectedly off from work the following week and missed the August 18, 2022 deadline. (Id., ¶4.) On August 25, 2022, Counsel asked Plaintiff’s counsel for a second extension. (Id.) Kemper assigned different counsel to the matter on August 26, 2022. (Id.) On August 31, 2022, counsel received notice that default was entered on August 25, 2022. (Id., ¶5.)

Defendant’s new counsel, Angelina Lane, further states that Defendant’s counsel attempted to meet and confer with Plaintiff’s counsel to stipulate to setting aside default. (Lane Decl., ¶4.) Plaintiff’s counsel stated he would agree to set aside if Defendant paid $1,000 to cover expenditures caused by an untimely answer. (Id., ¶5.) Defendant’s counsel argued that $1,000 was excessive but offered to pay for the cost of filing the request for default. (Id.) Plaintiff refused the offer. (Id.)

Defendant’s evidence shows that default was entered because Defendant’s original counsel was unexpectedly away from work and missed the deadline to file his answer. Therefore, default was entered due to Defendant’s counsel’s neglect. Plaintiff did not oppose this motion. Defendant’s motion to set aside default is granted.