Judge Lee W. Tsao, Case Number: 22NWCV01387, Date: 2024-10-09 Tentative Ruling

Judge: Lee W. Tsao, Case: 22NWCV01387, Date: 2024-10-09 Tentative Ruling

Case Number: 22NWCV01387 Hearing Date: October 9, 2024 Dept: C

U.S. NATIONAL BANK ASSOCIATION v. RUDY ESPINOZA

CASE NO.: 22NWCV01387

HEARING: 10/9/24 @ 10:30 A.M.

TENTATIVE RULING

Defendant Rudy Espinoza’s motion to set aside default is CONTINUED to October 30, 2024 at 10:30 A.M. in Dept. SE-C. Defendant is ORDERED to file a responsive pleading on or before October 23, 2024.

Moving Party to give NOTICE.

This motion is unopposed as of October 1, 2024.

This is an action for breach of contract and common counts.

On March 14, 2024, default was entered against defendant Rudy Espinoza.

Defendant seeks to set aside default based upon mistake, inadvertence, or excusable neglect under CCP § 473, subd. (b).

Discussion

Code of Civil Procedure section 473, subdivision (b) states:

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.

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 on March 14, 2024, and Defendant filed the instant motion on April 19, 2024, within the six-month time specified in CCP § 473. Hence, the motion is timely.

Defendant states that he was hospitalized during the response time. (Decl. Espinoza, ¶ 3.) This is inadvertence and excusable neglect.

Defendant did not include a copy of the answer and cross-complaint.

Based upon this, the Court is inclined to set aside default. However, Defendant 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 October 30, 2024 at 10:30 A.M. in Dept. SE-C. Defendant is ORDERED to file a responsive pleading on or before October 23, 2024.