Judge Lee W. Tsao, Case Number: 22NWCV01099, Date: 2024-04-24 Tentative Ruling

Judge: Lee W. Tsao, Case: 22NWCV01099, Date: 2024-04-24 Tentative Ruling

Case Number: 22NWCV01099 Hearing Date: April 24, 2024 Dept: C

RODRIGUEZ v. NISSAN NORTH AMERICA, INC., ET AL.

CASE NO.: 22NWCV01099

HEARING: 4/24/24 @ 9:30 A.M.

TENTATIVE RULING

Defendant Wish Automotive III, Inc. dba Nissan of Alhambra’s motion to set aside default is CONTINUED to May 8, 2024 at 9:30 a.m. in Dept. SE-C. Defendant is ORDERED to file a responsive pleading on or before May 3, 2024.

Moving Party to give NOTICE.

The motion is unopposed as of April 19, 2024.

This is a Song-Beverly action. Defendants Nissan North America, Inc., and Wish Automotive III, Inc. dba Nissan of Alhambra (“Nissan of Alhambra”) move to set aside default entered against Nissan of Alhambra on April 26, 2023. The motion is made pursuant to CCP § 473(b) on the grounds of attorney fault, neglect, mistake, and inadvertence.

Discussion

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. (CCP § 473, subd. (b).)

The purpose of mandatory relief is to alleviate the hardship on parties who lose their day in court due to an inexcusable failure to act by their attorneys. (Rodriguez v. Brill (2015) 234 Cal.App.4th 715, 723.) “Section 473 is often applied liberally where the party in default moves promptly to seek relief, and the party opposing the motion will not suffer prejudice if relief is granted. [Citations.] In such situations ‘very slight evidence will be required to justify a court in setting aside the default.’ [Citations.] [¶] Moreover, because the law strongly favors trial and disposition on the merits, any doubts in applying section 473 must be resolved in favor of the party seeking relief from default.” (Fasuyi v. Permatex, Inc. (2008) 167 Cal.App.4th 681, 695.)

Here, default was entered against Nissan of Alhambra on April 26, 2023. The motion was filed on October 19, 2023. The motion is timely.

Counsel for moving party states that he was unaware that he had not filed a responsive pleading. (Decl. Abramova, ¶ 3.)

Based upon this, the Court is inclined to set aside default. However, Nissan of Alhambra has not attached a responsive pleading to the motion. “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.” (CCP § 473, subd. (b).) Therefore, the motion to set aside default is CONTINUED to May 8, 2024 at 9:30 a.m. in Dept. SE-C. Defendant is ORDERED to file a responsive pleading on or before May 3, 2024.