Judge: Michael Small, Case: 23STCV06949, Date: 2023-12-06 Tentative Ruling

Case Number: 23STCV06949    Hearing Date: December 6, 2023    Dept: 57

Defendant has moved under Code of Civil Procedure Section 473(b) to vacate the default that the Court clerk entered against her in this partition action that the Plaintiff has brought.  The Court is denying the Defendant’s motion.

In pertinent part, Section 473(b) provides that a party may seek relief “from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, or excusable neglect.”   A clerk’s entry of a default is a proceeding from which relief may be sought under Section 473(b).  (Lorenz v. Commercial Acceptance Ins. Co.  (1995) 40 Cal.App.4th 981, 990-91.)  Section 473(b) motions for relief from a clerk’s entry of default must be filed within a reasonable time after default was entered, and, in any event, cannot be brought more than six-months after the entry of default.  (Rutan v. Summit Sports, Inc. (1985) 173 Cal.App.3d 965, 970.) 

The following is a recitation of the undisputed procedural and factual background to the Defendant’s Section 473(b) motion.  Plaintiff served the Defendant with the summons and complaint in this action on May 25, 2023.  Defendant concedes she was properly served.  Defendant did not respond to the complaint within the 30-day deadline set by the Code of Civil Procedure.  Plaintiff then proceeded to request that the clerk enter a default against the Defendant.  The clerk entered default on June 29, 2023.  On the same day, Plaintiff mailed the Defendant a copy of the clerk’s entry of default.  Defendant concedes that she received that mailing.  Defendant moved to set aside the default on October 4, 2023.  The previous day, the Defendant had filed an answer to the Plaintiff’s complaint.  The filing of the answer had no legal effect, however, because of the default that was in place when the answer was filed.

In her Declaration in support of the motion to vacate the clerk’s default, Defendant states that she is presently involved in multiple lawsuits regarding properties owned by her family and the volume of suits has overwhelmed her.  Defendant further states that she mistakenly thought that the summons and complaint she received from Plaintiff about this partition suit dealt with one of the other lawsuits, and that is why she failed to file a timely response to the Plaintiff’s complaint. 

In the Court’s view, Defendant’s declaration does not justify the relief from default that Defendant seeks under Section 473(b).  For one, missing from the declaration is any statement by the Defendant of some action she took in one of the other lawsuits she references in the Declaration in the mistaken belief that the summons and complaint  she received from the Plaintiff about this partition suit related to another suit.  It thus appears from the Declaration that the Defendant did nothing in any of the suits following receipt of the summons and complaint in this lawsuit.   Furthermore, Defendant’s declaration does not adequately explain why it took Defendant more than three months to file her Section 473(b) motion following service of the clerk’s entry default.  It would seem that service of the entry of the default should have immediately made Defendant aware of her purported confusion and mistake and prompted her to act promptly to seek to vacate the default. 

To be sure, Defendant was self-represented at the time the summons and complaint were served and the time for responding to the complaint was running.  But being self-represented is not in and of itself a legitimate excuse for Section 473(b) purposes.

The Court is mindful of the principle in Section 473(b) jurisprudence that disposition of cases on the merits, rather than through defaults, is the preferred course.  This principle affords litigants their day in court.  Here, however, that principle gives way because Defendant has not presented sufficient justification for Section 473(b) relief and did not act with reasonable diligence to set aside the default when the purported confusion and mistake was called to her attention.