Judge: Nathan Vu, Case: 2021-01192427, Date: 2022-10-03 Tentative Ruling

Motion to Set Aside Default

Defendant Delfino Velasquez-Hernandez’s motion to set aside entry of default is DENIED without prejudice.

Defendant Delfino Velasquez-Hernandez moves to set aside the entry of default entered against the Defendant on 01/08/2022 pursuant to Civil Procedure Code section 473(b).

Civil Procedure section 473(b) provides 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 [the party’s] mistake, inadvertence, surprise, or excusable neglect.” (Civil Proc. Code, § 473, subd. (b).)

An application for relief under Section 473(b) must be accompanied by a copy of the answer or other pleading proposed to be filed therein, and be made within a reasonable time, but in no case exceeding six months after the judgment, dismissal, order, or proceeding was taken. (See Civil Proc. Code, § 473, subd. (b).)

By this motion, Defendant seeks relief from entry of default, which was entered against Defendant on 01/18/2022. (ROA No. 22 [Request for Entry of Default].) However, this motion was filed on 08/11/2022, more than six months after entry of default. The motion is therefore untimely. (fn.1)

Alternatively, Civil Procedure section 473(b) allows a motion for default to be filed within six months after entry of judgment, if the motion is “accompanied by an attorney's sworn affidavit attesting to his or her [the attorney’s] mistake, inadvertence, surprise, or neglect.” (Civil Proc. Code, § 473, subd. (b).) It does not appear that judgment has been entered in this case so that a motion for relief from default based on an attorney’s mistake, inadvertence, surprise, or neglect would be timely.

Defendant argues in the memorandum of points and authorities that the default was caused by counsel’s mistake, inadvertence, surprise, or neglect. However, Defendant’s counsel’s declaration does not ascribe the mistake, inadvertence, surprise, or neglect to counsel. (See Doi Decl., ¶ 4 [“Due to mistake, inadvertence, surprise, or excusable neglect, an Answer to the Complaint was not timely filed; and on January 18, 2022, Plaintiff filed a Request for Entry of Default.”].)

Further, Defense Counsel’s declaration contains only a bare statement that the failure to timely file an answer was due to “mistake, inadvertence, surprise, or excusable neglect.” The declaration contains no facts to support this contention, including the who, what, where, when, and why of the purported mistake, inadvertence, surprise or excusable neglect.

Defendant also fails to include a copy of the answer or other proposed pleading with the motion. As such, the motion is procedurally defective.

When a motion for relief from default is made more than six months after the default was entered, the court has the “inherent equity power to grant relief from a default or default judgment procured by extrinsic fraud or mistake.” (Moghaddam v. Bone (2006) 142 Cal.App.4th 283, 286.)

To set aside a judgment based on extrinsic fraud or extrinsic mistake, the moving party must satisfy three elements: “First, the defaulted party must demonstrate that it has a meritorious case. Secondly, the party seeking to set aside the default must articulate a satisfactory excuse for not presenting a defense to the original action. Lastly, the moving party must demonstrate diligence in seeking to set aside the default once it had been discovered.” (Id. at pp. 290-91, emphasis in original].)

Defendant has not (1) demonstrated that Defendant has a meritorious case, (2) has not articulated a satisfactory excuse for not presenting a defense, and (3) has not demonstrated diligence in seeking to set aside the default once it had been discovered. For the reasons stated above, Defense Counsel’s generic declaration is insufficient for the court to grant equitable relief.

However, as the Defendant may be able to seek relief at a later time under Section 473(b)’s provision for attorney mistake, inadvertence, surprise, or neglect, or pursuant to the court’s inherent equity power, the court will deny the motion without prejudice.

Plaintiff shall give notice of this ruling.

(fn.1) Defendant attempted to file a motion for relief from default on 07/29/2022, but this filing was rejected. However, the motion would still be untimely even if it had been accepted for filing on 07/29/2022.