Judge: Jon R. Takasugi, Case: 20STCV41456, Date: 2022-10-12 Tentative Ruling

Case Number: 20STCV41456    Hearing Date: October 12, 2022    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

Defendant’s motion to set aside is GRANTED. 

On 10/28/2020, the Law Firm of Fox and Fox, a general partnership composed of Frank O. Fox and Claire S. Fox filed suit against Joy Fuller-Smith (Defendant), alleging: (1) breach of contract; and (2) common counts.

Now, Defendant moves to set aside the entry of default.

Legal Standard

Code of Civil Procedure (CCP) section 473, subdivision (b) provides:

“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.”

Discussion

            Default was entered against Defendant on 7/29/2022. Defendant argues that default was entered by reason of mistake and excusable neglect and offers the following explanation:

The arbitration stay was lifted because Defendant, who was ill, missed the Arbitration Status Conference. Defendant believed if the Court accepted the reason for her error, the stay would be reinstated and the matter would continue to arbitration. Therefore, mistakenly believing that the arbitration would proceed and having received the prior notice that filing an Answer would waive her right to arbitrate, Defendant did not file an Answer. Defendant believes that her failure to file the Answer was not only a mistake, but also excusable neglect.

            (Motion, 4: 26-5: 3.)

            On a motion pursuant to Code of Civil Procedure section 473, “very slight evidence will be required to justify a court in setting aside the default.” (Elston v. City of Turlock (1985) 38 Cal.3d 22, 23.)

            Here, Defendant’s motion is timely, is accompanied by a proposed answer, and sets forth evidence that default was entered due to excusable neglect.

            Based on the foregoing, Defendant’s motion to set aside is granted. 

It is so ordered.

Dated:  October    , 2022

   Hon. Jon R. Takasugi
   Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If all parties to a motion submit, the court will adopt this tentative as the final order.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. 

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