Judge: John C. Gastelum, Case: 22-01208211, Date: 2022-08-09 Tentative Ruling

(1) Motion to Set Aside/Vacate Default and Judgment (2) Status Conference

 

Tentative Ruling: Defendant Larry Gomez, Sr.’s Motion to Set Aside Entry of Default (and Default Judgment if Entered) is GRANTED.

 

Pursuant to Code of Civil Procedure section 473:

 

“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. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.”  (Code Civ. Proc., § 473, subd. (b).)

 

“Where . . . the motion is made more than six months after entry of default, the motion is not directed to the court’s statutory power under section 473 to grant relief for mistake or excusable neglect but rather is directed to the court’s inherent equity power under which it may grant relief from a default judgment where there has been extrinsic fraud or mistake.”  (Aldrich v. San Fernando Valley Lumber Co. (1985) 170 Cal.App.3d 725, 737.)  “The term ‘extrinsic’ refers to matters outside of the issues framed by the pleadings, or the issues adjudicated.”  (Id., 738.)  “Mistake has been defined as [] the doing of an act under an erroneous conviction, which act, but for such conviction, would not have been done.”  (Ibid. [internal citations omitted].)

 

“The law favors resolution of cases on their merits, and because it does, any doubts about whether Code of Civil Procedure section 473 relief should be granted must be resolved in favor of the party seeking relief from default.  Therefore, a trial court order denying relief is scrutinized more carefully than an order permitting trial on the merits.”  (Fasuyi v. Permatex, Inc. (2008) 167 Cal.App.4th 681, 685 [internal citations omitted]; Lasalle v. Vogel (2019) 36 Cal.App.5th 127, 134.)

 

“Moreover, it has been held that where the aggrieved party makes a strong showing of diligence in seeking relief after discovery of the facts, and the other party is unable to show prejudice from the delay, the original negligence in allowing the default to be taken will be excused on a weak showing.”  (Aldrich v. San Fernando Valley Lumber Co. (1985) 170 Cal.App.3d 725, 740.)

 

Here, Defendant Gomez filed his Motion to Set Aside Entry of Default on April 6, 2022, less than six months after (1) default was entered on October 25, 2021 and (2) Plaintiff filed its request for entry of judgment on January 28, 2022.  (ROA #12, 23, and 43.)  Although Defendant Gomez’s proposed responsive pleading was not filed until April 29, 2022 (four days after the six-month deadline from the October 25, 2021 entry of default), the court finds that failure was due to counsel’s mistake and counsel was diligent in attempting to cure his mistake.  Therefore, the court exercises its inherent equity power to grant relief from the default.  (Aldrich v. San Fernando Valley Lumber Co. (1985) 170 Cal.App.3d 725, 737.) 

 

Defendant Gomez’s motion is accompanied by a declaration establishing that he discovered the default in late January or early February of 2022.  No more than two months later, Defendant Gomez retained an attorney who filed this motion on his behalf.  As such, the court finds that Defendant exercised sufficient diligence in seeking relief after discovering the default entry and case at hand such that his “original negligence in allowing the default to be taken will be excused.”  (Aldrich v. San Fernando Valley Lumber Co. (1985) 170 Cal.App.3d 725, 740.) 

 

As such, Defendant Larry Gomez, Sr.’s Motion to Set Aside Entry of Default (and Default Judgment if Entered) is GRANTED.  Defendant Larry Gomez, Sr. must file the proposed responsive pleading (ROA #47) within 10 days of this ruling.

 

Plaintiff’s request for sanctions is DENIED.

 

Moving party to give notice.