Judge: Michael E. Whitaker, Case: 24SMCV05629, Date: 2025-03-03 Tentative Ruling

Case Number: 24SMCV05629    Hearing Date: March 3, 2025    Dept: 207

TENTATIVE RULING

 

DEPARTMENT          207

HEARING DATE       March 3, 2025

CASE NUMBER        24SMCV05629

MOTIONS                  Motions to Set Aside Entries of Default

MOVING PARTIES   Defendants Reuben Ladell Cannon and Amethyst Cannon

OPPOSING PARTY   none

 

 

MOTIONS

 

On November 14, 2024, Plaintiff Richman Bry (“Plaintiff”) filed suit against Defendants Reuben Ladell Cannon (“Reuben”) and Amethyst Cannon (“Amethyst”) (together, “Defendants”) alleging two causes of action for (1) breach of contract and (2) trespass. 

 

The proofs of service indicate Defendants were personally served with the summons and complaint on November 24, 2024, and Defaults were entered on December 27, 2024.

 

Defendants now move to set aside the entries of default.  The motions are 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, Defendants have each filed declarations indicating that on December 9, 2024, fifteen days before their responsive pleadings were due, the property at issue (where Defendants resided) and all of Defendants’ personal belongings burned down in the Franklin fire.  Defendants further declare that they and Reuben’s elderly, disabled mother, narrowly escaped with their own lives, after having to evacuate in the dark, due to a power outage that preceded the fire.

 

            The courts have a strong public policy in favor of hearing cases on the merits.  (Au-Yang v. Barton (1999) 21 Cal.4th 958, 963.)  Further, “Providing access to justice for self-represented litigants is a priority for California courts.”  (California Rules of Court, rule 10.960(b).)

 

            Therefore, in light of the fire that destroyed Defendants’ home and all their belongings on December 9, the Court exercises its discretion and sets aside the defaults entered against Defendants on December 27.

 

CONCLUSION

 

            For the foregoing reasons, the Court grants Defendants’ unopposed motions and sets aside the defaults entered against Defendants on December 27, 2024. 

 

Defendants shall file and serve a response or responses to the Complaint on or before April 4, 2025. 

 

Further, on the Court’s own motion, the Court continues the Case Management Conference from March 14, 2025 to August 21, 2025 at 8:30 AM in Department 207.  All parties shall comply with California Rules of Court, rules 3.722, et seq., regarding Initial and Further Case Management Conferences.  In particular, all parties shall adhere to the duty to meet and confer (Rule 3.724) and to the requirement to prepare and file Case Management Statements (Rule 3.725).     

 

            The Clerk of the Court shall provide notice of the Court’s orders.

 

 

 

 

DATED: March 3, 2025                                                         ___________________________

Michael E. Whitaker

                                                                                          Judge of the Superior Court