Judge: Katherine Chilton, Case: 21STLC03730, Date: 2023-05-02 Tentative Ruling

Case Number: 21STLC03730     Hearing Date: May 2, 2023    Dept: 25

PROCEEDINGS:      MOTION TO SET ASIDE DEFAULT AND DEFAULT JUDGMENT  

MOVING PARTY:   Defendant Victor E. Solis  

RESP. PARTY:          None  

MOTION TO SET ASIDE DEFAULT AND DEFAULT JUDGMENT   

(CCP § 473(b)) 

TENTATIVE RULING: 

For the foregoing reasons, Defendant Victor Solis’s Motion to Set Aside Default and Default Judgment is GRANTED. The default entered on October 5, 2022, and default judgment entered on October 20, 2022, are HEREBY VACATED. Defendant Solis is ordered to file his proposed answer within ten (10) days of notice of this order.

SERVICE:   

[X] Proof of Service Timely Filed (CRC, rule 3.1300)                    OK 

[X] Correct Address (CCP §§ 1013, 1013a)                                                        OK 

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b))                        OK  

OPPOSITION:                                                    [   ] Late                    [ X] None 

REPLY:                                                                  [   ] Late                    [ X ] None 

ANALYSIS: 

I.                Background  

On May 13, 2021, Plaintiff United Financial Casualty Company (“Plaintiff”) filed an action against Defendants Cesar Hernandez and Victor Solis to recover on behalf of its insured involved in a motor vehicle accident. On October 5, 2022, Plaintiff filed a dismissal as to Defendant Hernandez and the Court entered default as to Defendant Solis. A default judgment of $24,606.45 was entered against Defendant Solis on October 20, 2022.  

On April 3, 2023, Defendant Solis filed the instant Motion to Set Aside Default and Default Judgment (the “Motion”). No opposition has been filed.

II.              Legal Standard & Discussion  

Defendant Solis seeks relief under Code of Civil Procedure section 473, subdivision (b). (Mot., pp. 3-6.) The Motion is accompanied by a copy of Defendant’s Proposed Answer. (Id., Ex. 2.)  

“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. Pro., §473(b).) To qualify for relief under section 473, the moving party must act diligently in seeking relief and must submit affidavits or testimony demonstrating a reasonable cause for the default. (Elston v. City of Turlock (1985) 38 Cal. 3d 227, 234.)

As a preliminary manner, Defendant’s motion is timely because he filed it less than six months after entry of default judgment on October 20, 2022. In addition, Defendant acted diligently in moving for relief within a reasonable time of discovering the default entered against him. (Decl. Solis ¶ 7.)

Defendant Solis states that his failure to timely file a responsive pleading was the result of mistake, inadvertence, surprise, and/or excusable neglect. First, he had relinquished ownership of the subject motor vehicle prior to the date it was involved in an accident. (Decl. Solis ¶ 2, Ex. 1.) Further, the recipient of the vehicle, Miguel Angel Palo Calderon (“Calderon”) promised Defendant he would file all the necessary DMV paperwork. (Ibid.) After he was served with this lawsuit, Defendant conferred with Calderon, and Calderon told him that he would take care of the paperwork. (Decl. Solis ¶ 5.) Finally, Defendant does not speak, read, or write English. Accordingly, the Court finds that Defendant Solis’s failure to timely file a responsive pleading was the result of mistake, inadvertence and/or excusable neglect.

III.            Conclusion & Order 

For the foregoing reasons, Defendant Victor Solis’s Motion to Set Aside Default and Default Judgment is GRANTED. The default entered on October 5, 2022, and default judgment entered on October 20, 2022, are HEREBY VACATED. Defendant is ordered to file his proposed answer within ten (10) days of notice of this order.

Moving party is ordered to give notice.