Judge Michael T. Smyth, Case 37-2021-00030066-CU-BC-CTL 2024-03-01 Tentative Ruling

Judge: Michael T. Smyth, Case: 37-2021-00030066-CU-BC-CTL, Date: 2024-03-01 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - February 29, 2024

03/01/2024 09:00:00 AM C-67 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Michael T. Smyth

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Civil - Unlimited Breach of Contract/Warranty Motion Hearing (Civil) 37-2021-00030066-CU-BC-CTL HOLLIS VS LEACH [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Set Aside Default, 01/23/2024

Defendant Gabriella Librers-Leach's Motion to Set Aside is DENIED.

Code of Civil Procedure section 473(b) states that: 'The court may, upon any terms as may be just, relieve a party . . . 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.' Generally, relief 'should be liberally applied and the power freely exercised to carry out the policy in favor of trial on the merits.' (Carrasco v. Craft (1985) 164 Cal.App.3d 796, 803 [internal quotations omitted].) However, the law is well settled that where a defendant 'with full knowledge of the proceedings . . . fails to take action to protect his interests until after the default, it is an abuse of discretion to set the default aside. Nor does the trial court have the legal power to set aside the default simply because the defendant did not realize the legal effect of failing to file an answer.' (Yarbrough v. Yarbrough (1956) 144 Cal.App.2d 610, 615.) 'It is the duty of every party desiring to resist an action or to participate in a judicial proceeding to take timely and adequate steps to retain counsel or to act in his own person to avoid an undesirable judgment. Unless in arranging for his defense he shows that he has exercised such reasonable diligence as a man of ordinary prudence usually bestows upon important business his motion for relief under section 473 will be denied. Courts neither act as guardians for incompetent parties nor for those who are grossly careless of their own affairs. The burden of proof on such a motion is on the moving party who must establish his position by a preponderance of the evidence.' (Luz v. Lopes (1960) 55 Cal.2d 54, 62 [internal quotation marks omitted].) As an initial matter, there is a question as to the timeliness of the motion. Default was entered on May 25, 2023. (ROA 89.) Defendant attempted to file a motion to set aside default on August 14, 2023, in person, at the clerk's office. She had calendared January 26, 2024 for the motion. That motion was ultimately rejected by the clerk because they did not process her credit card payment. (ROA 97.) The rejection stated that there was 'no means of return deposited in attorney pick up box under letter 'L'.' (Ibid.) Defendant has averred that she filled out the credit card form necessary for filing the motion and was not provided notice that the motion had been rejected until she logged on for her hearing on January 26, 2024 and was told the motion had not been calendared. Courts have recognized that technical defects or a clerk's own errors should not prejudice a party and that submitting documents to the court to be filed may, on some facts, be judged sufficient for the purposes of filing deadlines. (E.g., Calendar No.: Event ID: TENTATIVE RULINGS

3091641 9 CASE NUMBER: CASE TITLE: HOLLIS VS LEACH [IMAGED] 37-2021-00030066-CU-BC-CTL Rojas v. Cutsforth (1998) 67 Cal. App. 4th 774, 778 ['a paper is deemed filed when it is deposited with the clerk with directions to file the paper'].) However, even assuming the motion to set aside were timely filed, Defendant has not shown she is entitled to relief as there was no applicable mistake of law or excusable neglect.

For example, Defendant argues that because she was a self-represented litigant and was 'unaware of what was required under the law' after her demurrer was overruled. (ROA 100, Mot. at 3:16-17.) Additionally, Defendant had a ''mistaken belief' about the status of the case and what was required of her, and certainly did not understand what would be entailed in filing an 'Answer' to Plaintiff's Complaint.'' (ROA 108, Reply at p. 4:9-10.) These grounds are insufficient.

While a mistake in law is a ground for relief under section 473, the 'issue of [whether] mistake in law constitutes excusable neglect presents a question of fact. The determining factors are the reasonableness of the misconception and the justifiability of lack of determination of the correct law.

Ignorance of the law coupled with negligence in ascertaining it will certainly sustain a finding denying relief.' (Robbins v. Los Angeles Unified School Dist. (1992) 3 Cal.App.4th 313, 319 [cleaned up]; see also Hopkins & Carley v. Gens (2011) 200 Cal.App.4th 1401, 1413 [same].) Here, Defendant's counsel was relieved, with notice, on October 3, 2022. (ROAs 80, 82.) Defendant did nothing further to defend herself until she realized she was in default. Defendant did not inquire with an attorney or attempt to research the matter herself. Defendant was required to either 'retain counsel or to act in his own person to avoid an undesirable judgment' but did neither. (See Luz, supra, 55 Cal.2d at 62.) There was no mistake of law that supports granting Defendant's motion. (Yarbrough, supra, 144 Cal.App.2d at 615 [holding it is an abuse of discretion 'to set aside the default simply because the defendant did not realize the legal effect of failing to file an answer.'].) The motion is denied.

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