Judge: Michael Small, Case: 23STCV13449, Date: 2024-09-13 Tentative Ruling

Inform the clerk if you submit on the tentative ruling. If moving and opposing parties submit, no appearance is necessary.

Case Number: 23STCV13449    Hearing Date: September 13, 2024    Dept: 57

Defendant Haiwei Yang has moved under Code of Civil Procedure Section 473(b) to set aside the default and default judgment that was entered against him.   The Court is denying Yang's motion.   

Section 473 (b)authorizes trial courts, in their discretion, to "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, or excusable neglect."  Yang states in support of his Section 473(b) motion that, when he filed his unverified answer to Plaintiff's verified complaint in this case on September 15, 2023, he was self-represented and was unaware that his answer had to be verified.   The Court struck Yang's unverified answer on February 22, 2024 and gave Yang until April 24, 2024 to file a verified answer.   Yang further states that his lack of awareness of the form and type of answer he needed to file was a mistake within the meaning of Section 473(b).

The problem for Yang is that the Clerk entered a default against Yang on June 10, 2024, and the Court entered a default judgment against him on June 26, 2024, not because Yang filed an unverified answer on September 15, 2023, but rather, because Yang failed to file a verified answer by April 24, 2024, as ordered by the Court on February 22, 2024 when striking Yang's unverified answer.  Yang does not dispute that he received notice of the Court's February 22, 2024 ruling giving him a two-month window in which to file a verified answer.  Yang's motion is silent as to why he did not avail himself of that opportunity and file a verified answer by the April 24, 2024 deadline.  In short, Yang has failed to demonstrate that the entry of the default and default judgment against him for failing to file a verified answer by April 24, 2024 was the product of mistake, inadvertence, or excusable neglect on his part.  Accordingly, Yang has not demonstrated a basis for relief from the default and default judgment under Section 473(b).