Judge: Mark E. Windham, Case: 24STLC01747, Date: 2024-09-30 Tentative Ruling
Case Number: 24STLC01747 Hearing Date: September 30, 2024 Dept: 26
Mercury Ins. Co. v. Romans, et al.
VACATE ENTRY OF DEFAULT OR DEFAULT
JUDGMENT
TENTATIVE RULING:
Defendant Dusti Romans’ Motion to Set Aside Default Judgment
is DENIED.
ANALYSIS:
On March 11, 2024, Plaintiff Mercury Insurance Company
(“Plaintiff”) filed the instant action against Defendant Dusti Romans (“Defendant”).
Following Defendant’s failure to file a responsive pleading, the Court entered
Defendant’s default on May 1, 2024. Defendant filed the instant Motion to Set
Aside Default Judgment on June 7, 2024. Plaintiff filed an opposition on August
8, 2024.
Discussion
Defendant moves for relief from
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.)
As the opposition points out, the
Motion is moot because there is no default judgment in this action. The Court
has only entered Defendant’s default. Even if the Motion were to be construed
as one to vacate the entry of default, it does not meet the statutory
requirements. Although the Motion was timely filed one month after entry of
default, it is not supported by a declaration of party fault. The motion must
demonstrate that the basis for Defendant’s failure to respond to the Complaint was
due to mistake, inadvertence, surprise, or excusable neglect. Here, only
defense counsel submits a declaration that does not explain why a response to
the action was not filed. (Motion, Gray Decl.) Nor is an affidavit provided by
Defendant. (Ibid.) Finally, the Motion is not accompanied by a copy of
Defendant’s proposed responsive pleading. In light of Defendant’s lack of
support for the statutory requirements, relief under Code of Civil Procedure
section 473, subdivision (b) is unavailable.
Conclusion
Defendant Dusti Romans’ Motion to Set Aside Default Judgment
is DENIED.
Court clerk to give notice.