Judge Jill Feeney, Case Number: 23STCV14566, Date: 2023-11-06 Tentative Ruling

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))

The discretionary portion of section 473, subdivision (b) provides: “The court may, upon terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.

“[I]t is the policy of the law to bring about a trial on the merits whenever possible, so that any doubts which may exist should be resolved in favor of the application, to the end of securing to a litigant his day in court and a trial upon the merits.” (Frank E. Beckett Co. v. Bobbitt (1960) 180 Cal.App.2d Supp. 921, 928 (Bobbitt).) “Even in a case where the showing under section 473 is not strong, or where there is any doubt as to setting aside of a default, such doubt should be resolved in favor of the application.” (Ibid., quoting Van Dyke v. MacMillan (1958) 162 Cal.App.2d 594, 598, italics in Bobbitt.) “[D]uring the period when relief under section 473 is available, there is a strong public policy in favor of granting relief and allowing the requesting party his or her day in court.” (In re Marriage of Stevenot (1984) 154 Cal.App.3d 1051, 1071 (Stevenot).)

Here, Defendant testifies that he received papers several weeks ago and did not realize that they had anything to do with a lawsuit because he has never been sued before. (Pomeran Decl., ¶2.) Defendant did not know that he had to file an Answer, did not know there was a time limit to answer, and did not note when he received the papers. (Id.) Defendant was also distracted because he is 92 years old and his wife died in April 2023. (Id., ¶3.) Defendant did not realize the importance of the lawsuit papers and did not follow up with a lawyer until a caregiver looked at the papers and told him to get a lawyer. (Id.) Defendant does not believe he owes Plaintiff money and does not recall that Plaintiff sent any written notice that they were attempting to collect a debt. (Id., ¶¶4-5.)

Defendant also provides the declaration of his caregiver, Jennifer Bigelow, who testifies that in September 2023, she discovered that Defendant had been sued when she found the Summons and Complaint. (Bigelow Decl., ¶2.) Bigelow immediately contacted Plaintiff’s Counsel, who assured her that he would not default Defendant if he contacted Plaintiff’s counsel by September 14, 2023. (Id., ¶3.) However, default had already been entered earlier in August 2023. (Id., ¶4.)

Defendant’s declaration shows that he did not know the papers he received had to do with a lawsuit and mistakenly did not answer the Complaint. Defendant did not believe he owed Plaintiff money and had not received notice that he owed Plaintiff money. It was not until a caregiver looked more closely at the Summons and Complaint that Defendant discovered this lawsuit. Defendant is not a sophisticated litigant, is of an advanced age, and timely filed this motion within 180 days of entry of default. Plaintiff has not opposed this motion. In light of these facts, the Court finds that Defendant’s failure to answer was due to his own in advertence and mistake. The Court will exercise its discretion and grant Defendant’s motion to set aside default.