Judge: Martha K. Gooding, Case: 2021-01233375, Date: 2022-10-17 Tentative Ruling
1) Motion to Set Aside/Vacate Default - GRANTED
2) Status Conference
Plaintiff/Cross-Defendant Cheryl O’Neil (“O’Neil”) seeks relief from default as to Defendant/Cross-Complainant Alex Blank’s (“Blank”) Cross-Complaint. Motion is GRANTED.
As an initial matter, the Court notes Blank’s opposition to O’Neil’s motion was not properly served. (Code Civ. Proc., § 1005, subd. (c).) Blank served the opposition by certified mail, return receipt requested. Because the method of delivery requires a signature, it is not necessarily reasonably calculated to be delivered by the close of the next business day. O’Neil did not file any reply. It is unclear whether O’Neil received the opposition. The Court grants the motion subject to O’Neil’s objection regarding service of the opposition.
The Court “may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken. …Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect. The court shall, whenever relief is granted based on an attorney’s affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties.” (Code Civ. Proc., § 473, subd. (b).)
“[T]he law favors disposing of cases on their merits.” (Fasuyi v. Permatex, Inc. (2008) 167 Cal.App.4th 681, 696.) Any doubts in applying California Code of Civil Procedure section 473 “must be resolved in favor of the party seeking relief from default.” (Id.) If a party promptly seeks relief and there is no showing of prejudice to the non-defaulting party, “very slight evidence will be required to justify a court in setting aside the default.” (Id. [internal citations omitted].)
The moving party carries the burden of establishing inadvertence, surprise, mistake or excusable neglect by a preponderance of the evidence. (Transit Ads, Inc. v. Tanner Motor Livery, Ltd. (1969) 270 Cal.App.2d 275, 279.)
One ground for discretionary relief is inadvertence. In Elm v. Elm (1946) 72 Cal.App.2d 508, the court explained that: “To warrant relief under section 473 a litigant’s neglect must have been such as might have been the act of a reasonably prudent person under the same circumstances. The inadvertence contemplated by the statute does not mean mere inadvertence in the abstract. If it is wholly inexcusable it does not justify relief. Freeman on Judgments, 5th Ed., Vol. 1, p. 482; Shearman v. Jorgenson, 106 Cal. 483, 485, 39 P. 863. It is the duty of every party desiring to resist an action or to participate in a judicial proceeding to take timely and adequate steps to retain counsel or to act in his own person to avoid an undesirable judgment. Unless in arranging for his defense he shows that he has exercised such reasonable diligence as a man of ordinary prudence usually bestows upon important business his motion for relief under section 473 will be denied. Freeman, 483, 5th Ed. Courts neither act as guardians for incompetent parties nor for those who are grossly careless of their own affairs.” (See, Elm, at 513.)
Another ground for discretionary relief is mistake. Mistake, within the context of CCP section 473, can be a mistake of fact or a mistake of law. An example of a mistake of fact is when an attorney erroneously thought only one of two defendants he was employed to defend had been served. (See, Lieberman v. Aetna Ins. Co. (1967) 249 Cal.App.2d 515, 523-524.) A mistake of law must be on a legal problem where the issue is complex and debatable, a simple mistake of law is not a basis for relief. (See, Standard Microsystems Corp. v. Winbond Electronics Corp. (2009) 179 Cal.App.4th 868, 879.)
Next, is the ground of surprise. In State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, the court noted that “surprise” means some condition or situation in which a party is unexpectedly injured, without any default or negligence of his own, which ordinary prudence could not have guarded against. (Id., at 611, citing Credit Managers Assn. v. National Independent Business Alliance (1984) 162 Cal.App.3d 1166, 1173.)
Finally, excusable neglect means that “… the acts which brought about the default must have been the acts of a reasonably prudent person under the same circumstances.” (See, Jackson v. Bank of America (1983) 141 Cal.App.3d 55, 58.)
There is no dispute O’Neil’s motion is timely filed.
O’Neil submitted a proposed answer. (Motion, Exhibit 1.)
O’Neil sufficiently showed the default was entered as a result of her inadvertence and excusable neglect. (O’Neil Decl., 3:19-23.) In addition, Blank has not shown he would be prejudiced if relief was granted. The Court also notes the quiet swiftness with which Blank, who was represented by counsel at the time, requested default be entered. Blank filed the cross-complaint on 2/9/2022 and requested default be entered on 3/21/2022, 40 days later. There is no indication Blank’s attorney at the time reached out to O’Neil before requesting default be entered.
O’Neil shall serve and file her Answer to the Cross-Complaint, in the form attached as Exhibit 1 to the Motion, within 10 days.
O’Neil is ordered to give notice unless all parties waive notice at the hearing.