SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

 

 

On April 24, 2018, Plaintiff Brian Miller (“Plaintiff”) filed this action against defendants Blanca Schlup, et. al for damages arising from a dog bite. On July 31, 2018, Blanca Schlup (“Schlup”) and Martha Bautista (“Bautista”) filed a cross-complaint against Jack Colocho, Denise Colocho, and Catalina Colocho. 

On March 30, 2021, Plaintiff settled with defendants Schlup and Bautista. Plaintiff dismissed Schlup, Bautista, and all unnamed Doe Defendants. 

On October 11, 2023, Schlup and Bautista (collectively, “Cross-Complainants”) moved to set aside default obtained against Cross-Defendant Jack Colocho on the grounds of mandatory relief due to attorney error of mistake, inadvertence, and excusable neglect because entry of default was obtained prior to service of the Statement of Damages upon Jack Colocho. The Court denied the motion on the grounds that the motion for relief was untimely, because the mandatory provision of CCP § 473(b) must be made no more than six months after entry of judgment. (Min. Order, Oct. 11, 2023.) 

On October 19, 2023, Cross-Complainants bring the instant motion to again set aside default and for a different ruling on the motion. Essentially, Cross-Complainants bring a motion for reconsideration.  

CCP § 1008(a), requires the Court to reconsider a prior ruling if it finds there are new or different facts, circumstances, or law than those before the Court at the time of the original ruling.  Once the Court determines the existence of new or different facts, circumstances, of law, it can either modify or affirm its prior decision.  (Corns v. Miller (1986) 181 Cal.App.3d 195, 202.)  

Cross-Complainants contend that the Court did not address whether the dismissal occurred because of the attorney’s mistake, inadvertence, surprise, or neglect. However, regardless of whether Plaintiff’s counsel’s conduct was a result of mistake, inadvertence, surprise, or neglect, or whether the conduct was excusable or inexcusable, Cross-Complainants ignore the strict timing requirement of CCP § 473(b)’s attorney-fault provision for mandatory relief, which was the basis for the denial.  

CCP §473(b) provides, in pertinent part, that: 

“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 made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” 

(Emphasis added.) 

Cross-Complainants obtained Jack Colocho’s default on August 6, 2020. On August 19, 2022, the Court denied Cross-Complainants’ request for default judgment and informed Cross-Complainants of the Statement of Damages timing issue. However, Cross-Defendants waited to file the instant motion until July 20, 2023, which is 3 years after the entry of default itself, and 11 months after being notified of the issue. Because more than six months had elapsed from the entry of default, relief under section 473 is unavailable. (Rappleyea v. Campbell (1994) 8 Cal. 4th 975, 980; Aldrich v. San Fernando Valley Lumber Co. (1985) 170 Cal.App.3d 725, 735, fn. 3.) Further, the Court notes Cross-Complainants’ history of lack of diligence in pursuing default against Jack Colocho, namely the nearly two-year gap between Jack Colocho’s August 6, 2020 default and Cross-Complainants’ first request for default judgment on May 9, 2022, and then waiting eleven months after being informed of the statement of damages issue on August 19, 2022 to rectify the issue. This matter is already five years and seven months old to date.  

 

Based on the foregoing, the motion is DENIED.  

 

Moving party is ordered to give notice.