Judge: Marcella O. Mclaughlin, Case: 37-2023-00015452-CU-PO-CTL, Date: 2023-12-15 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - December 14, 2023

12/15/2023  01:30:00 PM  C-72 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Marcella O McLaughlin

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Civil - Unlimited  PI/PD/WD - Other Motion Hearing (Civil) 37-2023-00015452-CU-PO-CTL SAFECO INSURANCE COMPANY OF AMERICA VS SUTTON [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Set Aside Default, 09/19/2023

The motion to set aside the default is DENIED.

A. First, defendant has failed to establish that he acted diligently in seeking relief.

A motion under Code of Civil Procedure section 473(b) must be made within a 'reasonable time' but no later than six months after default has been entered. 'A delay is unreasonable as a matter of law only when it exceeds three months and there is no evidence to explain the delay.' Minick v. City of Petaluma (2016) 3 Cal.App.5th 15, 34.

In this case, defendant's default was entered on June 6, 2023. ROA 11-12. The instant motion, however, was not filed until September 19, 2023 – i.e., more than three months later. Neither defendant nor his attorney has provided an explanation for this delay. 'If a defendant believes it is in default, failing to act is unreasonable.' Kramer v. Traditional Escrow, Inc. (2020) 56 Cal.App.5th 13, 37.

B. Second, even if defendant had acted diligently, there is no evidence showing that defendant's failure to timely file an answer was due to 'mistake, inadvertence, surprise, or excusable neglect.' Code Civ.

Proc. § 473(b). Although defendant argues in the memorandum of points and authorities that he misunderstood the legal effect of substitute service, '[m]atters set forth in points and authorities are not evidence.' Alki Partners, LP v. DB Fund Services, LLC (2016) 4 Cal.App.5th 574, 590.

C. Finally, the motion is procedurally defective because defendant has not submitted a proposed responsive pleading as required by section 473(b).

D. The CMC set for today (ROA 29) is hereby ordered off calendar.

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