Judge: Joel R Wohlfeil, Case: 37-2023-00028979-CU-FR-CTL, Date: 2024-05-17 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - May 15, 2024

05/17/2024  09:00:00 AM  C-73 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Joel R. Wohlfeil

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Civil - Unlimited  Fraud Motion to Dismiss 37-2023-00028979-CU-FR-CTL ASTORGA VS ASTORGA [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Vacate, 03/06/2024

The Motion (ROA # 37) of Plaintiff Maria Astorga ('Plaintiff') for an order vacating the judgment entered against her on or about November 27, 2023, is GRANTED. Code Civ. Proc. 473(b).

This Motion was filed within six (6) months of the entry of default, and is accompanied by a proposed opposition to the Demurrer. The parties should appear at the hearing prepared to set a new date for the Demurrer. After a date is set, Plaintiff will be required to separately file the opposition papers.

'The court may, upon any 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 .... Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made 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 ....' Id. This Motion is supported by the declaration of Plaintiff's counsel explaining that counsel did not receive service of the Demurrer, and counsel was not apprised of the hearing date. Thus, service of the Demurrer was defective or Plaintiff's counsel mistakenly did not see or open the email constituting service of the Demurrer. Defense counsel does not appear to have communicated with Plaintiff's counsel regarding the absence of an opposition to the Demurrer. Though not intended to be critical, a courtesy inquiry by counsel could have eliminated the need for this Motion.

'The court shall, whenever relief is granted based on an attorney's affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties.' Id. The cross-request for an award of attorney fees is denied because no evidence is presented regarding the amount of attorney fees incurred.

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