Judge: Melvin D. Sandvig, Case: 21CHCV00651, Date: 2023-01-05 Tentative Ruling

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Case Number: 21CHCV00651    Hearing Date: January 5, 2023    Dept: F47

Dept. F47

Date: 1/5/23

Case #21CHCV00651

MOTION TO SET ASIDE DEFAULT

Motion filed on 10/10/22.

MOVING PARTY: Defendant Violet Bosak

RESPONDING PARTY: Plaintiff Sandra Bosak

NOTICE: ok

RELIEF REQUESTED: An order setting aside the default entered against Defendant Violet Bosak on 10/5/22.

RULING: The motion is granted. 

This action arises out of Plaintiff Sandra A. Bosak’s (Plaintiff) claim that Defendant Violet R. Bosak (Defendant) breached several agreements to repay loans made to her over the course of many years. Plaintiff claims that Defendant used undue influence and duress to obtain the loans from Plaintiff. Additionally, Plaintiff claims that Defendant and others converted personal property belonging to Plaintiff. Further, Plaintiff claims that Defendant’s conduct has caused her emotional distress. On 8/25/21, Plaintiff filed this action against Defendant for: (1) Breach of Contract, (2) Undue Influence, (3) Duress, (4) Conversion/Theft and (5) Intentional Infliction of Emotional Distress. On 11/12/21, Defendant filed her General Denial/Answer to the Complaint.

On 2/14/22, Defendant filed a Motion for Judgment on the Pleadings which was denied on 4/15/22.  (See  4/15/22 Minute Order).  Due to Defendant’s failure to appear at the 8/25/22 Case Management Conference, the Court set an Order to Show Cause  Re Sanctions for 10/5/22.  (See 8/25/22 Minute Order).  Defendant’s counsel, again, failed to appear at the 10/5/22 Order to Show Cause hearing.  (See 10/5/22 Minute Order).  As a result, the Court ordered Defendant’s General Denial stricken and entered default against Defendant.  Id.

On 10/10/22, Defendant filed and served the instant motion seeking an order setting aside the default entered against Defendant on 10/5/22.  Plaintiff has opposed the motion. 

Relief from default under CCP 473(b) may be either mandatory or discretionary.  Mandatory relief requires the submission of an attorney affidavit of fault and must be made within six months of the entry of default.  CCP 473(b).  Discretionary relief may be based on declarations or other evidence showing the default was the result of mistake, inadvertence, surprise or excusable neglect and must be made within a reasonable time, in no case exceeding six months, from the entry of default.  Id.  When relief is granted based on an attorney’s affidavit of fault, the court must direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties.  Id.

Here, the motion is accompanied by a declaration from Defendant’s counsel which states that it was his calendaring error that resulted in the failure to appear on 10/5/22, the striking of Defendant’s General Denial and the entry of default.  (See Ofili Decl.).  However, despite the inclusion of such declaration, it appears that Defendant is seeking relief under the discretionary provisions of CCP 473(b) as Defendant’s argument makes no reference to mandatory relief and argues that the default was the result of counsel’s mistake, inadvertence, surprise or excusable neglect in mis-calendaring the 10/5/22 hearing and the Court has wide discretion to grant relief.  (See Motion, p.3:10-p.4:10). 

Under the circumstances and given the fact that CCP 473(b) is to be liberally construed so that cases can be resolved on their merits, the Court finds that Defendant is entitled to relief under the discretionary provisions of CCP 473(b) based on counsel’s calendaring error and the filing of the  instant motion within days of the entry of the default.  (See Ofili Decl.); Berman  (1971) 17 CA3d 900,  910; Fasuyi (2008) 167 CA4th 681, 694-703.  The majority of the arguments in the opposition are improper in response to the instant motion.  For example, if Plaintiff wanted to challenge Defendant’s General Denial, she should have filed and served a motion addressing the purported defects of such pleading.  Similarly, the opposition to the instant motion is not the proper vehicle to argue the merits of the case.

Based on the foregoing, the default is set aside and Defendant’s General Denial is reinstated.