Judge: Kevin C. Brazile, Case: 24STCV04914, Date: 2024-05-13 Tentative Ruling

Hearing Date: May 13, 2024

Case Name: Stallworth v. Stallworth, et al.

Case No.: 22STCV24437

Matter: Motion to Set Aside Default

Moving Party: Defendant Bruce Stallworth

Responding Party: Plaintiff Carolyn Williams Stallworth

Notice: OK

Ruling: The Motion is denied.

Moving party to give notice.

If counsel do not submit on the tentative, they are strongly 

encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic. 

On December 15, 2023, the Court entered a terminating sanction for Defendant Bruce Stallworth by striking his answer and entering a default.  The reason for this sanction was that Bruce did not appear for his deposition or produce documents after the Court ordered him to do so on October 4, 2023.

Bruce now seeks to set aside his default due to excusable neglect, surprise, inadvertence, or mistake.  (Code Civ. Proc. § 473(b).)  Bruce contends that (a) when his former counsel withdrew, counsel’s motion to be relieved did not indicate that there were future hearing dates and (b) Bruce thereafter received no notices relating to this action because he moved to a different location in Missouri.  

Plaintiff argues that it was Bruce’s fault that he did not update his home address for this action; during the time in question, Bruce was filing liens in a probate case; Bruce was being served at the purported mistaken address for the probate case but nonetheless participated therein; and there is no explanation for why Bruce’s new counsel did nothing for months.

The discretionary provision of Code Civ. Proc. § 473(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 made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.”  The statute is liberally construed in order to give effect to the policy favoring resolution of disputes on their merits.  (Hopkins & Carley v. Gens (2011) 200 Cal.App.4th 1401, 1410.)  To be entitled to relief under the statute, the moving party must demonstrate a satisfactory excuse for his or her default, as well as diligence in seeking relief after discovery of the default.  Whether the moving party has carried this burden is a question to be resolved in the discretion of the trial court.  (Ibid.)

For relief to be warranted, any mistake must be something other than professional incompetence or ignorance of the law.  (Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1206.)  The term “surprise” refers to “some condition or situation in which a party is unexpectedly placed to his injury, without any default or negligence of his own, which ordinary prudence could not have guarded against.”  (Ibid., internal quotations omitted.)  Similarly, to be excusable, a litigant’s inadvertence or neglect must have been “such as might have been the act of a reasonably prudent person under the same circumstances.”  (Ibid.)

Here, diligence has not been shown.  The docket shows that Ted Khalaf became counsel for Bruce on December 28, 2023.  The instant Motion, however, was not filed until three months later, on March 25, 2024.  Given this gap in time, Bruce and his new counsel were not diligent.  (See Younessi v. Woolf (2016) 244 Cal.App.4th 1137, 1145 [unexplained delay of 7 weeks rendered motion untimely].)  

Khalaf merely indicates that this delay was caused by the inability to obtain Bruce’s case file from prior counsel.  While some delay would make sense based on this, three months is unjustified.  It’s also not apparent why counsel would need Bruce’s entire case file to assert a basic motion with the premise that Bruce did not receive notice because he moved.  Bruce could have supplied that information, and the missing information about the circumstances of this matter was readily available on the public docket.  The Court concludes that diligence has not been shown.

In sum, the Motion to Set Aside Default is denied.  The objections are overruled.

Moving party to give notice.

If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.