Judge: John C. Gastelum, Case: 22-01246809, Date: 2023-08-15 Tentative Ruling
Motion to Set Aside/Vacate Default and Judgment
Ruling: Off Calendar – no hearing will be held. Defendants Noel Baca Jr., and Defendant Nbaca Jr. Inc.’s Motion to Set Aside Default and Default Judgment is DENIED with 30 days leave to re-file and re-serve a Motion in compliance with Code of Civil Procedure section 473.
As an initial matter, Defendant Noel Baca Jr. cannot represent the interests of the corporate Defendant Nbaca Jr., Inc. Defendant Nbaca Jr., Inc. must retain counsel. “[U]nder a long-standing common law rule of procedure, a corporation, unlike a natural person, cannot represent itself before courts of record in propria persona, nor can it represent itself through a corporate officer, director or other employee who is not an attorney.” (CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1145.) “It must be represented by licensed counsel in proceedings before courts of record.” (Ibid.) Defendant Noel Baca Jr. is not permitted to represent the interests of the corporate Defendant Nbaca Jr., Inc. and Defendant Nbaca Jr., Inc. must retain an attorney to defend against this matter.
Next, the Motion does not meet the minimum standards pursuant to Code of Civil Procedure section 473. 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, the Motion was timely filed. The Motion was filed on February 28, 2023 and served on March 2, 2023, which is less than 6 months after default judgment was entered on December 15, 2022 and notice of the default was served on January 13, 2023.
However, the Motion is deficient in that it is not “accompanied by a copy of the answer or other pleading proposed to be filed therein.” (Code Civ. Proc., § 473, subd. (b).)
The declaration filed in support of the Motion is also deficient. Defendant failed to state that the declaration was certified “under the laws of the State of California” and identify the location where the declaration was executed. Both of these are required under Code of Civil Procedure section 2015.5.
Even so, because the law favors resolution of cases on their merits, the court will permit Defendants one opportunity to re-file and re-serve the Motion in substantial compliance with the applicable codes. The court finds that Defendants were diligent in seeking relief from the default judgment and that there were misunderstandings regarding when Defendants were to appear. Defendants also argue that they did not receive notice of the default proceedings. It does not appear that Plaintiff will suffer significant prejudice should this case proceed on the merits. As stated above, 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.
Accordingly, the Motion is DENIED WITH 30 DAYS LEAVE to re-file and re-serve the Motion in substantial compliance with the applicable codes.
Defendant Nbaca Jr., Inc. must retain an attorney to defend against this matter.
The court to give notice.