Judge: Lee W. Tsao, Case: 23NWCV02456, Date: 2024-06-27 Tentative Ruling

Case Number: 23NWCV02456    Hearing Date: June 27, 2024    Dept: C

KONG v. GUTIERREZ

CASE NO.:  23NWCV02456

HEARING:  06/27/24

#7

Defendant SARA GUTIERREZ’s Motion to Set Aside Default is DENIED.

Opposing Party to give notice.

No Reply filed as of June 24, 2024.

This civil rights action was filed by Plaintiff NEHEMIAH KONG (“Plaintiff”) on August 4, 2024. Default was entered against Defendant SARA GUTIERREZ (“Defendant”) on October 20, 2024. Default judgment has not been entered.

Defendant moves to set aside the default under either CCP §§473.5 or 473(b).

CCP § 473(b), states that “[t]he 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.”

Under CCP §473.5, the Court may set aside a default or default judgment if “(1) [defendant] received through no inexcusable fault of his own, no actual notice of the action in time to appear and defendant, and had not made a general appearance; (2) a default or default judgment has been entered against him by the court; (3) he acted with reasonable diligence in serving and filing the notice of motion to set aside the default or default judgment; and (4) he has a meritorious defense.” (CCP §473.5.)

The Motion is DENIED on the merits. In support of the Motion, Defendant declares, under penalty of perjury, that she “was served a Summons and Complaint… on August 22, 2023….” (Gutierrez Decl., ¶1.) However, Defendant does not explain why she failed to timely respond to the Complaint. 

Moreover, the Court notes that Defendant’s Motion is also properly denied due to procedural deficiencies. Defendant failed to attach a copy of an answer or pleading proposed to be filed therein as required by both CCP §§473.5 and 473(b). The terms of the code are mandatory; compliance is not optional.