Judge: Mark H. Epstein, Case: 23SMCV03868, Date: 2023-12-22 Tentative Ruling

Case Number: 23SMCV03868    Hearing Date: December 22, 2023    Dept: I

This is a motion to vacate entry of default in a UD case.  The complaint was filed on August 21, 2023, and default was entered on August 30, 2023.  A judgment for possession only was entered the same day.  Defendant moves to set the default aside and plaintiff opposes.

A default can be set aside where it is due to mistake, inadvertence, surprise, or excusable neglect so long as relief is sought within six months of the default (which it was here).  Generally, only “very slight” evidence is required because the law favors a merits disposition.  (Kramer v. Traditional Escrow, Inc. (2020) 56 Cal.App.5th 13.)  Of course, that rule does not allow setting aside a default where the decision not to file a timely response was tactical or deliberate rather than negligent.

Defendant here has provided a detailed declaration with corroborating evidence demonstrating that there were various travel-related issues that resulted in her missing the service of the summons and complaint.  That strikes the court as excusable neglect and not deliberate.  A reasonably prudent person, traveling in the manner defendant was traveling, might well not be aware of the suit.  And given the short time to respond—five days in a UD case—it is easier to excuse a failure to respond than it would be if the traditional 30 days were available.  Nor is there any evidence that plaintiff attempted to reach out to speak to defendant.  Of course, plaintiff is under no obligation to do so; plaintiff can rely upon service.  But had plaintiff reached defendant, it could well be that defendant would have responded quickly to the complaint.

Plaintiff’s opposition rebuts none of defendant’s showing.  Plaintiff suggests that defendant should have sought more time to respond and that it is defendant, not plaintiff, that should have reached out.  Such an argument carries weight, but only so much.  Plaintiff raises some good questions, such as why the employee to whom notice was given did not provide the notice to someone other than Ms. Venuto given Ms. Venuto’s travel plans.  That’s not a bad question, and had more time elapsed, it might be sufficient.  But here, the default was entered after only nine calendar days.  Such is not illegal, but it does make the excusable neglect showing easier. 

Further, the court cannot help but note that possession is no longer at issue.  Were possession at issue, the court would have more sympathy for plaintiff, who would be denied the use of the premises while the UD matter was being sorted out.  But defendant is gone.  This is just about money.  Further, given that the UD rules no longer apply, the whole need for speed simply no longer pertains and the general rule favoring trial on the merits applies with full force.  The court views plaintiff’s position with some greater skepticism than normal given that plaintiff sought a default money judgment while the motion for relief from default was pending.

In short, plaintiff should have stipulated to set the judgment aside, at least the monetary part.  While that is not required, given defendant’s showing and the legal presumptions, defendant’s motion has merit and is GRANTED.  Defendant is to file a stand-alone answer to the complaint within ten court days of today.  The court will set a CMC for some time in March.