Judge: Michael Shultz, Case: 22CMCV00577, Date: 2023-09-26 Tentative Ruling
Case Number: 22CMCV00577 Hearing Date: September 26, 2023 Dept: A
22CMCV00577
Josefina Alvizar v. Cesar Avila
[TENTATIVE] ORDER GRANTING
DEFENDANT’S MOTION TO SET ASIDE DEFAULT
I.
BACKGROUND
The
complaint alleges that the parties bought real property together and started
businesses during their 20-year relationship, which they agreed to share
jointly according to community property law. Defendant allegedly refuses to
convey to Plaintiff her share of the property. Plaintiff alleges contract-related
claims, fraud, quiet title, and partition of real property.
On
April 10, 2023, the Court entered default against Defendant, Cesar Avila. On
July 6, 2023, Defendant filed this motion to set the default aside, arguing
that default was entered against him because of his mistake, inadvertence,
surprise, or excusable neglect. He did not understand the significance of the
complaint or other court documents filed against him in two other counties by
Plaintiff.
In
opposition, Plaintiff argues that Defendant has not shown facts to support the
requested relief, and the motion was not made in a reasonable time. Plaintiff
has suffered prejudice.
Defendant
did not file a reply brief by September 18, 2023 (five court days before the
hearing.)
II. DISCUSSION
The
court has discretion to grant a party relief from a judgment, order, or other
proceeding taken against that party through the party’s mistake, inadvertence,
surprise, or excusable neglect. (Code Civ. Proc., § 473 subd. (b).)
The motion must be made within six months from the entry of default. (Arambula v. Union Carbide Corp. (2005)
128 Cal.App.4th 333, 345.) The motion
is timely made. While Section 473 is liberally applied, the party seeking
relief must show a satisfactory excuse for the conduct and diligence in making
the motion. (Hopkins & Carley v. Gens (2011)
200 Cal.App.4th 1401, 1410.)
Defendant
did not substantially delay in making this motion. He received the request for
entry of default on April 10, 2023, spoke with a paralegal, and subsequently
retained an attorney on May 19, 2023. Any further delay could have been avoided
with a stipulation to set aside default. Defendant’s declaration supports his
mistake and inadvertence in not appreciating the legal significance of the
summons and complaint served upon him, given his unfamiliarity with the legal
process. (Avila Decl.)
A
mistake of law is when a person knows the facts as they really are but has a
mistaken belief as to the legal consequences of those facts. Inadvertence is
defined as “lack of heedfulness or attentiveness, inattention, fault from
negligence.” (Baratti v. Baratti (1952) 109
Cal.App.2d 917, 921–922.) Contrary
to Plaintiff’s arguments, defendant need not be in a “deteriorated mental
condition by reason of paralytic stroke” to warrant relief. (Kesselman v. Kesselman (1963) 212
Cal.App.2d 196, 208.)
Plaintiff
has not persuasively shown any prejudice that would result from vacating the
entry of default. Plaintiff argues that she has suffered
financial hardship because Defendant has withheld her 50 percent interests in
the real property and businesses. That is not a prejudice that would result if
the Court were to grant relief. It is a damage claim allegedly resulting from
Defendant’s conduct, which is an issue to be tried on the merits.
If there is no
prejudice, only slight evidence is needed. Doubts are resolved in favor of the
party seeking relief in furtherance of the policy supporting trial and
disposition on the merits. (Mink v. Superior Court (1992) 2
Cal.App.4th 1338, 1343.)
Based
on the foregoing, Defendant’s motion is GRANTED. The Court vacates the default
entered on April 10, 2023. Defendant is ordered to file a verified answer in
compliance with statute. (Code Civ. Proc., § 446.) The Court
denies Plaintiff’s request to impose a penalty of $1,000 against Defendant
under the circumstances. (Code Civ.
Proc., § 473(c)(2).