Judge: Mark H. Epstein, Case: 22SMCV01381, Date: 2023-04-04 Tentative Ruling

Case Number: 22SMCV01381    Hearing Date: April 4, 2023    Dept: R

The motion to set aside the default is GRANTED.

Plaintiff filed a wrongful eviction action.  A default was entered on November 7, 2022.  But there was confusion.  The actual default was not on November 7, 2022, and the request was rejected as untimely.  On November 10, 2022, defendant filed a request that was granted.  Defendant also filed a responsive pleading consisting of a demurrer.  Even so, on November 14, 2022, the clerk’s office concluded that it should have entered the earlier default and granted the request.  Therefore, the default was retroactively entered on November 7, 2022 and the November 10, 2022 filings were voided.  Defendant now moves to vacate the default.

The motion is well taken.  At the time the demurrer was filed, defendant had not been found to be in default.  Defendant could, therefore, have well understood that the demurrer was timely and appropriate.  The opposition suggests that vacating default is improper because there is no extrinsic fraud or extrinsic mistake.  But such is not required.  Defendant moved quickly to vacate the default after she had notice of the default.  In fact, she attempted to demur.  That is sufficient to warrant vacating the default on grounds of mistake or excusable neglect.  There is a strong public policy favoring resolution of cases on their merits.  (Fasuyi v. Permatex, Inc. (2008) 167 Cal.App.4th 681.)

The default is VACATED.  Defendant’s demurrer, previously stricken, is RESTORED TO THE DOCKET.  The court will set a hearing date.  Opposition and reply will be filed per Code.