Judge: Mark E. Windham, Case: 23STLC05330, Date: 2024-09-18 Tentative Ruling
Case Number: 23STLC05330 Hearing Date: September 18, 2024 Dept: 26
Mercury Ins. Co. v. Melikova, et al.
VACATE DEFAULT AND DEFAULT JUDGMENT
(CCP § 473(b))
TENTATIVE RULING:
Defendant Marianna Melikova’s Motion to Vacate Default and
Default Judgment is DENIED.
ANALYSIS:
On August 21, 2023, Plaintiff Mercury Insurance Company (“Plaintiff”)
filed the instant action against Defendant Marianna Melikova (“Defendant”).
Following Defendant’s failure to file a responsive pleading, the Court entered
Defendant’s default on April 5, 2024 and default judgment on April 19, 2024.
Defendant filed the instant Motion to Vacate Default and Default Judgment on August
12, 2024. No opposition has been filed to date.
Discussion
Defendant moves for relief from
the entry of default and default judgment pursuant to Code of Civil Procedure
section 473, subdivision (b), which states that an application for relief must
be made no more than six months after entry of the order from which relief is
sought and must be accompanied by an affidavit of fault attesting to the
mistake, inadvertence, surprise or neglect of the moving party or its attorney.
(Code Civ. Proc., § 473, subd. (b); English v. IKON Business Solutions
(2001) 94 Cal.App.4th 130, 143.) When based on party fault, the neglect must
have been excusable and brought within a reasonable time. (Code Civ. Proc., §
473, subd. (b).) The motion must also be accompanied by a copy of the moving
defendant’s proposed pleading. (Code Civ. Proc., § 473, subd. (b).) This can be
corrected if Defendant submits a proposed responsive pleading by the hearing
date. (Code Civ. Proc., § 473, subd. (b); Carmel, Ltd. v. Tavoussi
(2009) 175 Cal.App.4th 393, 403.)
Where the statute requires
that “ ‘ “the application must be made within a ‘reasonable time’ … what is a
reasonable time in any case depends upon the circumstances of that particular
case.” While in “the determination of that question, a large discretion is
necessarily confided to [the trial] court” ... there must be some showing—some
evidence—as the basis for the exercise of such discretion.’ ” (Caldwell v.
Methodist Hospital (1994) 24 Cal.App.4th 1521, 1524 [citing Carrasco v.
Craft (1985) 164 Cal.App.3d 796, 805].) The Motion does not demonstrate it
was brought within a reasonable time under this statute. Instead, the Motion
incorrectly cites the time provision set forth in Code of Civil Procedure
section 473.5. Nor does it otherwise explain why a four month delay between the
entry of default and the instant Motion is reasonable.
Next, the Motion must demonstrate the basis for Defendant’s
failure to response was mistake, inadvertence, surprise, or excusable neglect.
Here, Defendant simply states they were mistaken regarding the need to file a
response. (Motion, Melikova Decl., ¶1.) This is not sufficient. A mistake of
fact must be shown to be excusable. (McClain v Kissler (2019) 39 Cal.App.5th
399, 414.) “Excusable” means a reasonably prudent person under the same or
similar circumstances might have made the same error. (Id. 414-415.)
Defendant’s supporting declaration provides no additional facts that would
allow the Court to determine that a reasonably prudent person would make the
same error given the language on the Summons. Simply asserting a general lack
of understanding is not sufficient for relief. (Hopkins & Carley v. Gens
(2011) 200 Cal.App.4th 1401, 1410–1411.) Defendant’s reply attempts to
characterize this mistake as being based on the belief that her insurance
company was handling the matter, but this is not reflected in Defendant’s sworn
declaration. The declaration vaguely states that Plaintiff did not understand
that the paperwork required her immediate attention and that it was not being
handled on her behalf. (Motion, Melikova Decl., ¶1.) As noted above, no other
information is provided that would explain Plaintiff’s thought process or
otherwise show that it was reasonable.
The Motion is accompanied by a
copy of Defendant’s proposed answer. However, in light of the lack of support
for the first two statutory requirements, relief under Code of Civil Procedure
section 473, subdivision (b) is unavailable.
Conclusion
Defendant Marianna Melikova’s Motion to Vacate Default and
Default Judgment is DENIED.
Court clerk to give notice.