Judge: Lisa K. Sepe-Wiesenfeld, Case: 22VECV00046, Date: 2025-04-03 Tentative Ruling
Case Number: 22VECV00046 Hearing Date: April 3, 2025 Dept: N
TENTATIVE RULING
Defendant Simona Berman’s Motion to Set Aside Judgment by Default, Based on Lack of Due
Process is DENIED.
Clerk to give notice.
REASONING
Defendant Simona Berman (“Defendant”) moves the Court for an order setting aside the
judgment entered against her on February 5, 2025 after a bench trial on December 9, 2024.
Code of Civil Procedure section 473, subdivision (b), provides that “[t]he court may, upon any
terms as may be just, relieve a party . . . from a judgment, dismissal, order, or other proceeding
taken against him or her through his or her mistake, inadvertence, surprise, or excusable
neglect.” Where a motion to set aside a default is based on a party’s mistake, inadvertence, or
excusable neglect, relief is discretionary, and Defendant must provide specific facts
demonstrating a mistake, either of fact or of law. (See Hopkins & Carley v. Gens (2011) 200
Cal.App.4th 1401, 1410.)
Defendant states in the present motion that she did not receive any minute order regarding her
excuse of medical necessity for absence from the Final Status Conference, with a request to
restore the case and set new dates for the Final Status Conference and trial, so she assumed the
dates had been extended, so she was surprised when she learned of the judgment against her.
(Mot., Berman Decl., pp. 4-5.) Notably, the Court had advised Defendant in its October 21, 2024
minute order that should she fail to appear or fail to retain counsel by the trial date set for
December 9, 2024, her answer would be stricken. On December 2, 2024, when Defendant failed
to appear for the Final Status Conference due to hospitalization, the Court noted there was no
notice or formal documentation regarding Defendant’s medical status or inability to appear on
that date. Then, on December 9, 2024, the date set for trial, Defendant neither appeared nor had
retained counsel. The minute order dated December 9, 2024 shows that Defendant failed to
appear, and the Court was in receipt of Defendant’s declaration tendering evidence of excuse of
medical necessity for absence from the Final Status Conference, with a request to restore the case
and set new dates for the Final Status Conference and trial. The Court contacted Cedars-Sinai
Main Hospital, after an employee of the hospital informed Plaintiffs Regina Brown and Todd
Brown, Trustees of the Brown Family Trust dated November 11, 1993 (“Plaintiffs”) counsel that
Defendant had been released on December 7, 2024; nurse Silvia Son informed the Court in open
court that Defendant had been discharged on December 7, 2024; Defendant’s answer was,
accordingly, stricken; and her default was entered on that date.
Put simply, the record does not support any finding of mistake, inadvertence, surprise, or
excusable neglect by Defendant. There is no identified mistake of fact or law, inadvertence, or
excusable neglect by Defendant; rather, she states that she was surprised that her default was
taken, and a judgment was entered against her due to that default. “Surprise” refers to “some
condition or situation in which a party to cause is unexpectedly placed to his injury, without any
default or negligence of his own, which ordinary prudence could not have guarded against.”
(Credit Managers Association v. National Independent Business Alliance (1984) 162 Cal.App.3d
1166, 1173, quotation marks omitted.) The record makes clear that the default was taken due to
Defendant’s own negligence in failing to appear on several occasions without excuse, failing to
inform the Court of the basis for failing to appear, and failing to appear on the trial date after
communication indicated Defendant was not hospitalized on the date of trial. Thus, there is no
basis to set aside the judgment here. Accordingly, Defendant Simona Berman’s Motion to Set
Aside Judgment by Default, Based on Lack of Due Process is DENIED.
