Judge: Peter A. Hernandez, Case: 23PSCV03430, Date: 2024-04-30 Tentative Ruling
Case Number: 23PSCV03430 Hearing Date: April 30, 2024 Dept: K
Defendant LJ Supply
Chain, Inc.’s Motion for Order to Set Aside Entry of Default is DENIED.
Background
“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 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. . .” (Code Civ. Proc., § 473, subd. (b).)
Discussion
Defendant moves the court, per Code of Civil Procedure § 473, for an order setting aside entry of default against it on the basis of mistake, inadvertence and excusable neglect.
“A party seeking relief under section 473 bears the burden of proof.” (Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1205.) Relief under section 473(b) is proper where defendant was mistaken as to some fact material to the defendant’s duty to respond, by reason of which defendant failed to make a timely response. (See Lieberman v. Aetna Ins. Co. (1967) 249 Cal.App.2d 515, 523-524.) “The term surprise, as used in section 473, refers to some condition or situation in which a party ... is unexpectedly placed to his injury, without any default or negligence of his own, which ordinary prudence could not have guarded against.” (State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 611 [internal citation and quotations omitted].) “The test of whether neglect was excusable [under section 473] is whether a reasonably prudent person under the same or similar circumstances” might have made the same error.” (Luri v. Greenwald (2003) 107 Cal.App.4th 1119, 1128 [internal citation and quotations omitted].) Finally, “[t]he inadvertence contemplated by the statute does not mean mere inadvertence in the abstract. If it is wholly inexcusable it does not justify relief.” (Hearn, supra, 177 Cal.App.4th at 1206.) “The only occasion for the application of section 473 is where a party is unexpectedly placed in a situation to his injury without fault or negligence of his own and against which ordinary prudence could not have guarded.” (Id. [quotations and citation omitted.)
Defendant’s President, Jie He (“He”), represents as follows:
He has reviewed the proof of service
filed January 4, 2024, stating that his wife was served on November 20, 2023 at
8:14 p.m. with the summons and complaint. (He Decl., ¶ 5). He is Defendant’s
agent for service of process and was never personally served. (Id.) He
received notice that there was a Case Management Conference set for March 27,
2024 and “mistakenly assumed” that he did not have to file a response and that
his appearance at the March 27, 2024 hearing “would suffice.” (Id., ¶
6). He retained attorney Roger O. Vega’s (“Vega”) services on March 14, 2024
and “just assumed” that Vega would appear on that date and that the case “would
be adjudicated on the merits at that time.” (Id., ¶ 7).
At the outset, the court notes that Defendant moved to set aside the default exclusively on subdivision (b) discretionary grounds. Defendant has not moved to set aside the default on the basis of improper service pursuant to Code of Civil Procedure § 473, subdivision (d).
Defendant has not met its burden of showing that default was entered as a result of mistake, inadvertence, surprise, or excusable neglect. The time for answering a complaint is governed by statute. The face of the summons informed Defendant of what steps it needed to take to preserve its rights. He has not provided the court with any information as to what his assumptions were based upon. The motion is denied.