Judge: Lynne M. Hobbs, Case: 22STCV21966, Date: 2023-12-22 Tentative Ruling

Case Number: 22STCV21966    Hearing Date: December 22, 2023    Dept: 30

NASS MANAGEMENT, INC. vs JOHN DAVID STEPHENS

Tentative

Defendant’s motion to set aside default is GRANTED.  Defendant is ordered to a responsive pleading within 15 days of this ORDER. Moving party to give notice.

Discussion

The Supreme Court in Elston v. City of Turlock (1985) 38 Cal.3d 227, 233 [211 Cal. Rptr. 416, 695 P.2d 713] stated regarding a motion to vacate a default or default judgment: “A motion seeking such relief lies within the sound discretion of the trial court, and the trial court's decision will not be overturned absent an abuse of discretion. [Citations.] However, the trial court's discretion is not unlimited and must be ‘“exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice.”’ [Citations.] [¶] 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 [citations].”  Very slight evidence is required to justify a trial court’s order setting aside a default.  Shamblin v. Brattain (1988) 44 Cal.3d 474, 478.

In any event, the default entered against Defendant should be stricken for procedural reasons. The court’s clerk erred in entering default. The amount of damages sought was never served on defendant through a statement of damages nor through the complaint. Code of Civil Procedure section 425.10(a)(2) states that a complaint shall contain demand for judgment for the relief sought and if the recovery is for money, “then the amount demanded shall be stated.” Id. The complaint does not state the amount sought against the Defendant. It states that it will “exceed $100,000” and be “according to proof.” Further, Plaintiff was obligated to obtain a default judgment within 45 days of entry of default, but failed to do so.  CRC Rule 3.110(h) and (i).  Default was entered on August 18, 2022 and the default judgment package was filed on June 1, 2023. Defendant then filed its motion to vacate the dismissal two months after Plaintiff filed for a default judgment. Plaintiff has not perfected a default judgment. Thus, had the default judgment been filed timely, it is likely that Defendant would have filed for relief sooner.  In any event, because the default was entered improperly, the motion is granted.