Judge Kerry Bensinger, Case Number: 23STCV30147, Date: 2025-05-06 Tentative Ruling

DEFENDANT MARK WILSON’S MOTION FOR AN ORDER SETTING ASIDE DEFAULT AND VACATING DEFAULT JUDGMENT

This is a FEHA action. On December 8, 2023, Plaintiff, Darwin Laidley, filed a complaint against defendant CRCD Enterprises (“CRCD”). On July 18, 2024, Plaintiff filed the operative First Amended Complaint (“FAC”) which added Mark Wilson (“Wilson”) and other CRCD entities as defendants.

On August 26, 2024, Defense counsel contacted Plaintiff’s counsel to inquire about the status of service of process on Wilson and other CRCD entities. (Hayden Decl., Ex. 4.) Plaintiff’s counsel did not indicate whether Wilson and the other defendants had been served.

On October 21, 2024, Plaintiff’s counsel filed a request for entry of default against Wilson without first warning Defense counsel. The request for entry of default was denied.

On October 25, 2024, Plaintiff’s counsel sent a copy of a declaration filed with the court indicating Plaintiff had filed requests for entry of default against Wilson and other CRCD entities. On the same day, Defense counsel contacted Plaintiff’s counsel requesting the requests for default be withdrawn. The parties thereafter stipulated to allow the CRCD entities to file an answer to the FAC, but could not reach an agreement as to Wilson because Wilson wanted to file a demurrer as his responsive pleading.

On November 4, 2024, Plaintiff filed another request for entry of default against Wilson. On the same day, default was entered against Wilson.

On January 29, 2025, Wilson filed this Motion for Order Setting Aside Default pursuant to Code of Civil Procedure section 473.5 and 473(b).

When service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him¿or her¿in¿the¿action, he¿or she¿may serve and file a notice of motion to set aside¿the¿default or default judgment and for leave to defend the action.¿ The¿notice of motion shall be served and filed within a reasonable time, but in no event exceeding the earlier of: (i) two years after entry of a default judgment against him¿or her; or (ii) 180 days after service on him¿or her¿of a written notice that¿the¿default or default judgment has been entered.

(Code Civ. Proc., § 473.5, subd. (a).) Additionally, the motion “shall be accompanied by an affidavit showing under oath that the party's lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect. The party shall serve and file with the notice a copy of the answer, motion, or other pleading proposed to be filed in the action.” (Code Civ. Proc., § 473.5, subd. (b).)

Code of Civil Procedure section 473, subdivision (b) provides that a court may “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.”¿ In addition, a court must vacate a default or dismissal when a motion for relief under Section 473, subdivision (b) is filed timely and accompanied by an attorney’s sworn affidavit attesting to the attorney’s mistake, inadvertence, surprise or neglect “unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise or neglect.”¿ (Code Civ. Proc., § 473, subd. (b).)¿¿¿¿

The party or the legal representative must seek such relief “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); see Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980 [“because more than six months had elapsed from the entry of default, and hence relief under section 473 was unavailable”]; People v. The North River Ins. Co. (2011) 200 Cal.App.4th 712, 721 [motion for relief under section 473 must be brought “within a reasonable time, in no case exceeding six months”].)¿

Wilson seeks an order setting aside the default entered against him pursuant to Code of Civil Procedure sections 473.5 and 473(b) on the grounds he did not receive actual notice of the lawsuit until October 25, 2024. Upon review of the pleadings, the court finds Wilson is entitled to such an order for three reasons: (1) Wilson states he did not receive actual notice of the lawsuit until October 25, 2024 (Wilson Decl., ¶¶ 7-10), (2) Plaintiff took Wilson’s default knowing he had counsel yet did not warn him of his intent to request entry of default (Hayden Decl., Exs. 3 and 4), and (3) prior to the entry of default against Wilson, Defense counsel expressed that Wilson preferred to file a demurrer[1] to the FAC rather than an answer, i.e., Wilson intended to respond to Plaintiff’s allegations.

Given the foregoing, Plaintiff’s efforts to take Wilson’s default is not well taken. “The State Bar Civility Guidelines deplore the conduct of an attorney who races opposing counsel to the courthouse to enter a default before a responsive pleading can be filed. [Citations.] Accordingly, it is now well-acknowledged that an attorney has an ethical obligation to warn opposing counsel that the attorney is about to take an adversary's default. [Citation.] In that regard we heartily endorse the related admonition found in The Rutter Group practice guide, and we note the authors' emphasis on reasonable time: ‘Practice Pointer: If you're representing plaintiff, and have had any contact with a lawyer representing defendant, don't even attempt to get a default entered without first giving such lawyer written notice of your intent to request entry of default, and a reasonable time within which defendant's pleading must be filed to prevent your doing so.’ [Citations.]” (Lasalle v. Vogel (2019) 36 Cal.App.5th 127, 134–35.) Plaintiff’s counsel, having had contact with Wilson’s attorney, and knowing Wilson’s stated intention to file a proposed demurrer, should have withdrawn the request for entry of default. Vacating the default against Wilson is therefore warranted.

Plaintiff argues the motion should be denied because he will be prejudiced if the default is set aside. Specifically, Plaintiff represents (1) he has committed hours and resources to the entry of default and preparation of default judgment package, propounding and responding to written discovery; (2) defendant did nothing for nearly three months after entry of default, and (3) he will incur additional expense by having to oppose Wilson’s demurrer. The court is not persuaded by Plaintiff’s showing. Wilson’s motion, as Plaintiff concedes, is timely. Further, Plaintiff’s grounds for prejudice amounts to having to prosecute this litigation. Requiring Plaintiff to do so aligns with well-established authority that judgments be based on the merits. “Because the law favors disposing of cases on their merits, ‘any doubts in applying section 473 must be resolved in favor of the party seeking relief from default [citations].’” (Rappleyea, supra, 8 Cal.4th at p. 980.)

The motion is GRANTED. The default entered against Defendant Mark Wilson on November 4, 2024 is VACATED. Defendant is directed to file and serve his demurrer and reserve a hearing for the same within the next five court days.¿

Kerry Bensinger

Judge of the Superior Court

[1] Wilson’s proposed demurrer is attached as Exhibit A to the motion.