Judge: Michael P. Linfield, Case: 21STCV38943, Date: 2022-08-23 Tentative Ruling
Case Number: 21STCV38943 Hearing Date: August 23, 2022 Dept: 34
SUBJECT: Motion to Set Aside Entry of Default of Defendant Alen Taroyan
Moving Party: Defendant Alen Taroyan (“Taroyan”)
Resp. Party: None
Defendant Alen Taroyan’s Motion to Set Aside Entry of Default is GRANTED.
I. BACKGROUND
On October 21, 2021 Plaintiff State Farm Mutual Automobile Insurance Company (“State Farm”) filed a complaint for declaratory relief against Defendants Vaishnavi Yathirajam, Jeshwanth Yathirajam, and Alan Taroyan seeking declaratory relief.
On January 27, 2022, the Clerk of Court entered default against Defendant Alan Taroyan.
On July 27, 2022 Defendant Alen Taroyan moved the Court for an order “to set aside the entry of default entered on January 27, 2022, pursuant to California Code of Civil Procedure section 473(b). The aforementioned motion will be made on the grounds that said default were the result of attorney oversight, mistake, excusable neglect, and inadvertence.” (Motion, p. 1:24-27.)
II. ANALYSIS
A. Legal Standard
Code of Civil Procedure section 473, subdivision (b) provides, in relevant part:
“The court may, upon any terms as may be just, 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. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (CCP § 473, subd. (b).)
The court has broad discretion to vacate the entry of default, default judgment, a dismissal, or other proceeding, but that discretion can be exercised only if the moving party establishes a proper ground for relief, by the proper procedure and within the set time limits. Pursuant to Code of Civil Procedure section 473(b), a motion to set aside/vacate cannot be brought more than six months after the proceeding was taken and must be made within a “reasonable time.”
Code of Civil Procedure section 473, subdivision (b) allows a court to vacate a prior order upon a showing that the order was entered due to a party’s mistake, inadvertence, surprise, or excusable neglect. The terms mistake, inadvertence, surprise, and excusable neglect which warrant relief under Code of Civil Procedure section 473, subdivision (b) are defined as follows:
“Mistake is not a ground for relief under section 473, subdivision (b), when ‘the court finds that the “mistake” is simply the result of professional incompetence, general ignorance of the law, or unjustifiable negligence in discovering the law ....’ [Citation] Further, ‘[t]he term “surprise,” as used in section 473, refers to “some condition or situation in which a party ... is unexpectedly placed to his injury, without any default or negligence of his own, which ordinary prudence could not have guarded against.” [Citation] Finally, as for inadvertence or neglect, ‘[t]o warrant relief under section 473 a litigant's neglect must have been such as might have been the act of a reasonably prudent person under the same circumstances. The inadvertence contemplated by the statute does not mean mere inadvertence in the abstract. If it is wholly inexcusable it does not justify relief.’ [Citation].” (Henderson v. Pacific Gas & Electric Co. (2010) 187 Cal.App.4th 215, 229-230.)
Code of Civil Procedure section 473, subdivision (b) also provides certain guidelines for when a court is mandated to set aside entry of default or default judgment. Code of Civil Procedure section 473, subdivision (b) states in pertinent part:
“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.” (CCP § 473, subd. (b).)
B. Discussion
1. Motion Timeliness
On January 27, 2022, the Clerk of Court entered default against Defendant Alan Taroyan. Taroyan filed the instant motion on July 27, 2022. The Court finds that July 27, 2022 occurred 181 days after default was entered against Taroyan, excluding the end date.
“Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (CCP § 473(b).)
“A party seeking relief under section 473(b) must file the motion within a reasonable time but not longer than six months after the judgment or dismissal has been entered. This six-month time limitation is jurisdictional; the court has no power to grant relief under section 473 once the time has lapsed.” (Austin v. Los Angeles Unified School Dist. (2016) 244 Cal.App.4th 918, 928.) The Court finds that under Government Code § 6803 six months, or half a year, equals 182 days. (Govt. Code, § 6803; Davis v. Thayer (1980) 113 Cal.App.3d 892, 903.)
Thus, the Court finds the instant motion timely.
2. Mistake or Excusable Neglect?
Taroyan’s counsel John Ksajikian attests to a conscious decision to ignore the Complaint in this case following his review, based on several factors. (Ksajikian Decl., ¶¶ 7-11.) Ksajikian concluded that no direct insurer-insured relationship existed between State Farm and Taroyan, and that an order for declaratory relief “would not affect him," referring to Taroyan. (Ksajikian Decl., ¶ 12.) Recently, Ksajikian revised his initial position. (Ksajikian Decl., ¶ 13.)
Taroyan asks the Court to consider Ksajikian’s initial assessment a mistake or excusable neglect. The Court finds this argument questionable. However, since “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.” (Huh v. Wang (2007) 158 Cal.App.4th 1406, 1419 [cleaned up].)
Further, this motion is unopposed.
Thus, the Court grants relief from entry of default. The Court reminds Defendant Taroyan that trial is scheduled for December 16, 2022, and the Court has no intention of continuing the trial to accommodate Taroyan’s re-entry into this case. (“However, this section shall not lengthen the time within which an action shall be brought to trial pursuant to Section 583.310.” (CCP § 473(b).)
III. CONCLUSION
Defendant Alen Taroyan’s Motion to Set Aside Entry of Default is GRANTED. Defendant Taroyan’s answer is to be filed within seven days.