Judge: Lisa R. Jaskol, Case: 22STCV30024, Date: 2023-12-13 Tentative Ruling

Case Number: 22STCV30024    Hearing Date: March 27, 2024    Dept: 28

Having considered the moving, opposing and reply papers, the Court rules as follows. 

BACKGROUND 

On September 14, 2022, Plaintiff Andrea Kassandra Garcia (“Plaintiff”) filed this action against Defendants Stephen John Binder (“Defendant”) and Does 1-25 for motor vehicle tort, general negligence, and negligence per se. 

On September 30, 2022, Plaintiff filed a statement of damages. 

On October 13, 2022, Plaintiff filed a proof of service showing personal service on Defendant of the summons, complaint, statement of damages, and other documents on October 11, 2022. 

On November 17, 2022, the clerk entered Defendant’s default. 

On December 8, 2022, Defendant filed an answer. 

On December 13, 2023, the Court denied Defendant’s motion to set aside the default under Code of Civil Procedure section 473, subdivision (b), because the motion (filed August 30, 2023) was untimely. 

On January 16, 2024, Defendant filed a motion for an order setting aside the default under the Court’s equitable power and for an order permitting the filing of an answer, to be heard on March 27, 2024. On March 6, 2024, Plaintiff filed an opposition. On March 20, 2024, Defendant filed a reply. 

No trial date is currently set. 

PARTIES’ REQUESTS 

Defendant asks the Court to vacate the default. 

Plaintiff asks the Court to deny the motion. 

LEGAL STANDARD 

          “Apart from any statute, courts have the inherent authority to vacate a default and default judgment on equitable grounds such as extrinsic fraud or extrinsic mistake."  (Bae v. T.D. Service Co. of Arizona (2016) 245 Cal.App.4th 89, 97 (Bae), citing Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981 (Rappleyea); Olivera v. Grace (1942) 19 Cal.2d 570, 575.)  "Extrinsic fraud usually arises when a party is denied a fair adversary hearing because he has been 'deliberately kept in ignorance of the action or proceeding, or in some other way fraudulently prevented from presenting his claim or defense.’ ” (Ibid., quoting Kulchar v. Kulchar (1969) 1 Cal.3d 467, 471.)  “In contrast, the term ‘extrinsic mistake’ is ‘broadly applied when circumstances extrinsic to the litigation have unfairly cost a party a hearing on the merits. [Citations.]’ ” (Id. at pp. 97-98, quoting Rappleyea, supra, 8 Cal.4th at p. 981.) 

A party may file a motion seeking equitable relief from a default and default judgment “ ‘even though the statutory period [for relief under Code of Civil Procedure section 473, subdivision (b)] has run.’ ” (Bae, supra, 245 Cal.App.4th at p. 98, quoting County of San Diego v. Gorham (2010) 186 Cal.App.4th 1215, 1229.) 

To set aside a default judgment based on extrinsic mistake, the defaulted party must show (1) it has a meritorious case, (2) a satisfactory excuse for not presenting a defense, and (3) diligence in seeking to set aside the default once the defaulted party discovered it.  (Bae, supra, 245 Cal.App.4th at p. 100.)  The parties agree that this three-part test applies here. 

Defendant argues that (1) he has a meritorious defense because Plaintiff caused the accident that gave rise to this case, (2) he has a satisfactory excuse because the Court accepted and conformed Defendant’s answer on December 8, 2022 and Defendant engaged in discovery without knowing that a default had been entered, and (3) he acted diligently after discovering the default by filing a motion to vacate the default. 

Plaintiff opposes the motion, arguing Defendant’s motion repeats the arguments made in Defendant’s previous motion to vacate the default, which the Court denied.  Plaintiff also disputes Defendant’s contentions concerning a meritorious defense, satisfactory excuse, and diligence. 

Based on the Court’s review, the Court concludes that Defendant has satisfied the requirements for setting aside the default.  The Court exercises its equitable power to set aside the default. 

CONCLUSION 

The Court GRANTS the motion of Defendant Stephen John Binder to vacate the default entered on November 17, 2022.  Defendant Stephen John Binder must file a new answer. 

The Court sets an Order to Show Cause re: Default on May 24, 2024. 

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.