Judge: Latrice A. G. Byrdsong, Case: 23STLC00895, Date: 2023-11-02 Tentative Ruling

Case Number: 23STLC00895    Hearing Date: November 2, 2023    Dept: 25

Hearing Date:                         Thursday, November 2, 2023

Case Name:                             Old Republic Surety Company v. Best All, Inc., et al.

Case No.:                                23STLC00895

Motion:                                   Motion to Set Aside Entry of Default 

Moving Party:                         Defendant Ping Dominguez

Responding Party:                   None

Notice:                                    OK

Tentative Ruling:           Defendant Ping Dominguez’s Motion to Set Aside the March 28, 2023 Entry of Default is GRANTED.
Defendant Ping Dominguez's Answer to be served and separately filed within 20-days of the date of this Court's Order.  

BACKGROUND

On February 2, 2023, Plaintiff Old Republic Surety Company (“Plaintiff”) filed a verified complaint in interpleader against Defendants Best All, Inc., Ping Dominguez (“Defendant”), Hsuan-Chien Chang, and Does 1 – 75.

Defendant was served with the summons and complaint on February 18, 2023. (Dominguez Decl. para. 4.) Defendant did not file an answer within thirty days, and, on March 28, 2023, default was entered against Defendant. (Ibid.)

On September 15, 2023, Defendant filed the instant motion to set aside default judgment pursuant to California Code of Civil Procedure § 473 on the grounds that her failure to timely respond to the complaint was the result of mistake, inadvertence, and excusable neglect. Defendant attached a verified answer to the complaint as Exhibit A.

ANALYSIS

A. Legal Standard

The discretionary relief provisions of Code of Civil Procedure section 473 subs. (b) provide, in part: 

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. 

“Although a trial court has discretion to vacate the entry of a default or subsequent judgment, this discretion may be exercised only after the party seeking relief has shown that there is a proper ground for relief, and that the party has raised that ground in a procedurally proper manner, within any applicable time limits.” Cruz v. Fagor America, Inc. (2007) 146 Cal.App.4th 488, 495.) 

B. Application

Here, the mandatory relief provisions of CCP § 473(b) do not apply, as Defendant does not submit an attorney’s sworn declaration attesting to her mistake, inadvertence, surprise, or neglect. Instead, the issue is whether the discretionary relief provisions apply. First, Defendant’s motion is timely as it was filed within six months of the entry of default. Second, in support of the motion, defendant submits her own declaration explaining why she failed to timely file an answer to the complaint.

Case law requires that the mistake must be one that a reasonably prudent person under the same or similar circumstances’ might have made. (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 258.) 

Here, the Court finds that Defendant’s mistake was reasonable. Defendant contends that she grew up in China and therefore English is not her first language. (Dominguez Decl. para. 3.) She contends that she does not understand “legal and business vocabulary in English” and that she only speaks English conversationally. (Ibid.) Thus, though she received the summons and complaint, Defendant contends that she did not understand that she needed to respond within a certain time. (Dominguez Decl. para. 4.) Defendant did not learn that she needed to respond to the complaint until August, 2023, when she discussed the lawsuit with an attorney friend. (Ibid.)

Based on Defendant’s declaration, and the attached answer to the complaint (Motion, Ex. A), the Court finds that relief from the March 28, 2023 entry of default against Defendant is merited. Accordingly, Defendant’s motion is GRANTED.

CONCLUSION