Judge: Lisa R. Jaskol, Case: 22STCV08046, Date: 2024-03-08 Tentative Ruling

Case Number: 22STCV08046    Hearing Date: March 22, 2024    Dept: 28

Having considered the moving papers, the Court rules as follows. 

BACKGROUND 

On March 4, 2022, Plaintiff Brian Foster (“Plaintiff”) filed this action against Defendants Melvin R. Latter (“Defendant”) and Does 1-50 for premises liability. 

On October 17, 2023, the clerk entered Defendant’s default. 

On February 28, 2024, Defendant filed a motion to set aside the default.  Plaintiff has not filed an opposition. 

On March 8, 2024, the Court granted Plaintiff’s counsel’s motion to be relieved as counsel. 

No trial date is currently scheduled. 

PARTY’S REQUEST 

Defendant asks the Court to set aside the default. 

LEGAL STANDARD 

          Code of Civil Procedure section 473, subdivision (b), provides 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. . . .” 

(Code Civ. Proc., § 473, subd. (b).) 

DISCUSSION                    

Defendant asks the Court to set aside his default because his counsel did not realize that Plaintiff had served the summons and complaint on Defendant.  As a result, Defendant’s counsel inadvertently failed to file a timely answer. 

The Court finds that the default resulted from counsel’s inadvertence and grants the motion. 

CONCLUSION 

The Court GRANTS Defendant Melvin R. Latter’s motion to set aside the default and sets aside the default entered on October 17, 2023.  

Defendant is ordered to file his answer within 5 court days. 

Moving party is ordered to give notice of this ruling. 

Moving party is ordered to file the proof of service of this ruling with the Court within five days.