Judge: Melvin D. Sandvig, Case: 22CHLC19772, Date: 2023-04-07 Tentative Ruling

Case Number: 22CHLC19772    Hearing Date: April 7, 2023    Dept: F47

Dept. F47

Date: 4/7/23

Case 22CHLC19772

MOTION TO SET ASIDE DEFAULT/DEFAULT JUDGMENT

Motion filed on 1/10/23.

MOVING PARTY: Defendant Hung Nguyen

RESPONDING PARTY: Plaintiff Capital One Bank (USA), N.A.

NOTICE: ok

RELIEF REQUESTED: An order setting aside the default entered against Defendant Hung Nguyen on or about 12/15/22.

RULING: The unopposed motion is granted. 

On 9/9/22, Plaintiff Capital One Bank (USA), N.A. (Plaintiff) filed this action against Defendant Hung Nguyen (Defendant) for common counts regarding a disputed debt.  Defendant was personally served on 9/16/22.  Default was entered on 12/16/22.  On 12/19/22, Defendant filed an Answer and Cross-Complaint.  On 12/22/22, Default Judgment was entered against Defendant.    

On 1/10/23, Defendant filed the instant motion seeking an order setting aside the default entered against Defendant on or about 12/15/22.  Although the caption of the motion and the relief requested only mentions setting aside the default, the footer of the motion indicates that it is a “Motion to Set Aside Default Judgment.”

The motion is based on the ground that the default was entered as a result of Defendant’s attorney’s mistake, inadvertence, surprise or excusable neglect and requests discretionary relief.  CCP 473(b); (See Simons Decl.).  Alternatively, Defendant seeks relief under the mandatory provision of CCP 473(b).  (See Simons Decl.).

On 1/18/23, Plaintiff filed an Answer to the Cross-Complaint.

On 3/27/23, Plaintiff Capital One Bank (USA), N.A. filed a Limited Non-Opposition to the motion.  Plaintiff states that based on the declaration of fault from attorney Simons, Plaintiff does not oppose the motion.  Plaintiff notes that the motion might more appropriately be heard in Dept. F43 where the case was pending when judgment was entered on 12/22/22 because the cross-complaint filed on 12/30/22 was procedurally prohibited because the case was disposed so the reclassification/reassignment on 1/4/23 was premature.

Since Plaintiff does not oppose the relief requested, the Court finds that it would be in the interests of justice and judicial economy for this Court to rule on the instant motion and allow the case to proceed on the merits.  If the Answer to the Cross-Complaint had not already been filed, the Court would order the Answer to the Complaint and the Cross-Complaint (which were filed on 12/19/22) deemed filed as of the date of this hearing and allow Plaintiff 30 days to respond to the Cross-Complaint.  However, as noted above, Plaintiff has already filed an Answer to the Cross-Complaint. 

Based on the foregoing, the Court finds that the most efficient way of proceeding is for this Court to set aside the default entered against Defendant on 12/16/22 and the default judgment entered against Defendant on 12/22/22 and allow the filing dates of the Answer to the Complaint, the Cross-Complaint and the Answer to the Cross-Complaint to stand.