Judge: Michael E. Whitaker, Case: 24SMCV01282, Date: 2025-03-19 Tentative Ruling
Case Number: 24SMCV01282 Hearing Date: March 19, 2025 Dept: 207
TENTATIVE RULING
DEPARTMENT 207
HEARING DATE March 19, 2025
CASE NUMBER 24SMCV01282
MOTION Motion to Set Aside Entry of
Default
MOVING PARTIES Plaintiffs Carl Wellinger, Individually and
as Trustee for the Wellinger Family Trust; Molly Wellinger; Mia Wellinger, a
minor by and through her guardian ad litem Carl Wellinger, a minor, by and
through his guardian ad litem Carl Wellinger
OPPOSING PARTY none
MOTION
This case arises from a dispute between owners of adjacent
businesses.
On March 18, 2024, Plaintiffs Carl Wellinger, Individually and as
Trustee for the Wellinger Family Trust; Molly Wellinger; Mia Wellinger, a minor
by and through her guardian ad litem Carl Wellinger; and Logan Wellinger, a minor
by and through his guardian ad litem Carl Wellinger (collectively, “Plaintiffs”)
filed suit against Defendants Golden Glo Quality Cleaners; Ji-Yung You; Nancy
You; Wilde-Anderson S 1993 Trust; Wilde-Anderson Trust; and Suzanne
Wilde-Anderson 1993 Trust, alleging four causes of action for (1) negligence;
(2) trespass; (3) nuisance; and (4) strict liability, alleging the cleaners
business emitted harmful chemicals, affecting Plaintiffs’ business.
Defendant Golden Glo Quality Cleaners (“Golden Glo”) was served by
substitute service on April 11, 2024. On
January 6, 2025, Plaintiffs requested entry of default as to Golden Glo, which
the Court entered the same day.
On the form, Plaintiffs did not check the box requesting either a
clerk’s judgment or a court judgment, but Plaintiffs did indicate that they had
incurred $942.84 in costs under “Judgment to be entered.”
Plaintiffs now move to set aside/vacate their request for entry of
default judgment, as they contend the form omitted dollar amounts they seek to
include as part of the judgment. The
motion is unopposed.
ANALYSIS
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.)
Here, because Plaintiffs have not checked the boxes seeking a clerk’s
judgment or a court judgment, no judgment has yet been requested or
entered. In entering the default, the
Court simply disregarded the costs listed on the form.
As such, the Court does not find any error in entering the default
against Golden Glo. To the extent
Plaintiffs wish to include damages or other dollar amounts in their request for
default judgment, they may do so by filing another form, requesting a
judgment, and entering the amounts comprising the requested judgment amount.
CONCLUSION
For the foregoing reasons, the Court
denies Plaintiffs’ unopposed motion to set aside the default entered against
Golden Glo on January 6, 2025.
Plaintiffs shall provide notice of the Court’s ruling and file the
notice with a proof of service forthwith.
DATED:
March 19, 2025 ___________________________
Michael E. Whitaker
Judge
of the Superior Court