Judge: Michael E. Whitaker, Case: 24SMCV00570, Date: 2025-05-12 Tentative Ruling
Case Number: 24SMCV00570 Hearing Date: May 12, 2025 Dept: 207
TENTATIVE RULING
DEPARTMENT 207
HEARING DATE May 12, 2025
CASE NUMBER 24SMCV00570
MOTION Motion
to Set Aside Entry of Default and Default Judgment
MOVING PARTY Defendants
Leodegario Ahuatzi Quintero and Ahuatzi Produce Inc.
OPPOSING PARTY none
MOTION
On February 7, 2024, Plaintiff Tamara
Wofford (“Plaintiff”) brought suit against Defendants Leodegario Ahuatzi
Quintero and Ahuatzi Produce Inc. (“Defendants”) alleging a single cause of
action for negligence, arising from a vehicle collision between the parties’ vehicles.
Default was entered against Defendants on
June 4, 2024 and default judgment was entered against Defendants on August 1,
2024.
Defendants now move to set aside/vacate
the default and default judgment. The
motion is unopposed.
LEGAL
STANDARD
I.
DISCRETIONARY AND MANDATORY RELIEF
“Proceeding to judgment in the absence of a party is an extraordinary
and disfavored practice in Anglo–American jurisprudence: The policy of the law is to have every
litigated case tried upon its merits, and it looks with disfavor upon a party,
who, regardless of the merits of the case, attempts to take advantage of the
mistake, surprise, inadvertence, or neglect of his adversary.” (Au-Yang v. Barton (1999) 21 Cal.4th
958, 963 [cleaned up].)
Code of Civil procedure section 473 “includes a discretionary
provision, which applies permissively, and a mandatory provision, which applies
as of right.” (Minick v. City of Petaluma (2016) 3 Cal.App.5th 15, 25
(hereafter Minick).) “Section 473
is a remedial statute to be “applied liberally” in favor of relief if the
opposing party will not suffer prejudice.
Because the law strongly favors trial and disposition on the merits, any
doubts in applying section 473 must be resolved in favor of the party seeking
relief from default. Unless inexcusable
neglect is clear, the policy favoring trial on the merits prevails.” (Minick, supra, 3 Cal.App.5th at p. 24
[cleaned up].)
The party or the legal
representative must seek such relief “within a reasonable time, in no case
exceeding six months, after the judgment, dismissal, order, or proceeding was
taken.” (Code Civ. Proc., § 473, subd. (b); see Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980 [“because more than
six months had elapsed from the entry of default, and hence relief under
section 473 was unavailable”]; People v.
The North River Ins. Co. (2011) 200 Ca.App.4th 712, 721 [motion
for relief under section 473 must be brought “within a reasonable time, in no
case exceeding six months”]). “The
six-month limit is mandatory; a court has no authority to grant relief under
section 473, subdivision (b), unless an application is made within the
six-month period.” (Arambula v. Union Carbide Corp. (2005) 128 Cal.App.4th 333, 340,
citations omitted.)
A.
DISCRETIONARY
RELIEF
Per Code of Civil Procedure
section 473, subdivision (b), a court may “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.”
B.
MANDATORY
RELIEF
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.
(Code Civ. Proc., § 473, subd. (b).) “In considering whether the trial court
properly denied relief under section 473(b), the first question is the
sufficiency of defendants' showing of attorney fault, if believed, to trigger
the mandatory relief provisions of that statute.” (Standard Microsystems Corp. v. Winbond
Electronics Corp. (2009) 179 Cal.App.4th 868, 896, disapproved on other
grounds by Even Zohar Construction & Remodeling, Inc. v. Bellaire
Townhouses, LLC (2015) 61 Cal.4th 830 (hereafter Standard).) “Under section 473(b), a party is entitled to
relief from a default and resulting judgment whenever, on timely application
for relief, his attorney ‘attest[s] to his or her mistake, inadvertence,
surprise, or neglect’ in connection with the default or the judgment.” (Ibid.)
ANALYSIS
As a threshold matter, a moving
party must file and serve all moving papers at least 16 court days prior to the
hearing. (Code Civ. Proc., § 1005, subd.
(b).) Here, there is no proof of service
indicating that Defendants served their motion papers on Plaintiff.
CONCLUSION
Therefore, in lieu of denying the
motion, the Court continues the hearing to July 7, 2025 at 8:30 AM in Department
207 to enable Defendants to effectuate service and file the proof of
service. The proof of service shall be filed no later
than June 23, 2025.
Defendants shall also provide notice
of the Court’s order and file the notice with a proof of service forthwith.
DATED: May 12, 2025 ___________________________
Michael E. Whitaker
Judge
of the Superior Court