Judge: Mark A. Young, Case: 21SMCV01582, Date: 2025-01-10 Tentative Ruling

Case Number: 21SMCV01582    Hearing Date: January 10, 2025    Dept: M

CASE NAME:           Simpkins v. Canterskioskone, et al.

CASE NO.:                21SMCV01582

MOTION:                  Motion to Vacate Default/Default Judgment (Terminating Sanctions)

HEARING DATE:   1/10/2025

Legal Standard

Where a party cannot obtain an attorney affidavit of fault, the party may seek discretionary relief under section 473(b) due to “mistake, inadvertence, surprise, or excusable neglect.” (CCP § 473(b).) A motion for discretionary relief must be made “within a reasonable time but in no instance exceeding six months after the judgment, dismissal, order, or proceeding was taken.” (Id.) If discretionary relief is granted, the court may in its discretion order the moving party to pay the costs, including attorney fees, incurred in obtaining the default. (Rogalski v. Nabers Cadillac (1992) 11 Cal.App.4th 816, 823; Vanderkous v. Conley (2010) 188 Cal.App.4th 111, 118-119.) If the motion for discretionary relief is granted, the court may order the offending attorney to pay monetary sanctions up to $1,000 to opposing parties, or up to $1,000 to the State Bar Client Security Fund, or “[g]rant other relief as is appropriate.” (CCP § 473(c)(1)(A), (B), (C).)

A motion for relief under section 473(b) “shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted. . .” (CCP § 473(b).) However, this requirement is not jurisdictional; substantial compliance may suffice. (Carmel, Ltd. v. Tavoussi (2009) 175 Cal.App.4th 393, 403 [finding substantial compliance where counsel offered proposed answer at motion hearing rather than serving it with moving papers].) 

Analysis

Defendants Mikhail Siretskiy, and SRE, Inc. move to set aside the default and default judgment entered against them on February 14, 2024. Defendants fail to show mistake, inadvertence, surprise, or excusable neglect. A cursory review of the record reflects that the Court entered default and default judgment against Defendants because of Defendants’ willful disobedience of discovery orders. Accordingly, the motion is DENIED.