Judge Peter A. Hernandez, Case Number: 2STCV20997, Date: 2024-10-14 Tentative Ruling

Judge: Peter A. Hernandez, Case: 2STCV20997, Date: 2024-10-14 Tentative Ruling

Case Number: 2STCV20997 Hearing Date: October 14, 2024 Dept: 34

Defendant Genevieve Angel Dial’s Motion To Set Aside/Vacate Default Judgment is DENIED.

Background

On August 31, 2023, Plaintiff Geraldine Angel (“Plaintiff”) filed this action against Defendant Genevieve Angel Dial (“Defendant”) on various causes of action arising from what Plaintiff alleges is a prolonged pattern of repeated and malicious conduct.

On October 16, 2023, Plaintiff filed two proofs of service with the court.

On November 27, 2023, by request of Plaintiff, the Clerk’s Office entered default on Defendant.

On December 5, 2023, Plaintiff filed Judicial Council Form CIV-050, Statement of Damages (Personal Injury or Wrongful Death).

On December 21, 2023, Defendant filed an Answer to the Complaint.

On December 22, 2023, the court found related cases 23STCV20996, 23STCV20997, 23STCV20999, and 23STCV21000, and designated 23STCV20996 as the lead case. All three other cases have since been dismissed.

On January 29, 2024, Plaintiff filed Judicial Council Form CIV-100, Request for Court Judgment. Plaintiff concurrently filed additional documents in support of her request for default judgment.

On January 29, 2024, by request of Plaintiff, the Clerk’s Office dismissed with prejudice the doe defendants from the Complaint.

On April 29, 2024, Plaintiff filed Judicial Council Form CIV-100, Amended Request for Entry of Default.

On May 1, 2024, the court denied without prejudice Plaintiff’s initial Request for Default Judgment.

On September 11, 2024, Defendant filed this Motion to Set Aside/Vacate Default Judgment. On September 19, 2024, Plaintiff filed her opposition to Defendant’s motion. As of October 7, 2024, no reply has been filed.

Legal Standard

The court has broad discretion to set aside the entry of default, default judgment, or a dismissal, but that discretion can be exercised only if the defendant establishes a proper ground for relief, by the proper procedure and within the set time limits.

¿Code of Civil Procedure section 473(b) provides, in relevant part:

“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. . . . No affidavit or declaration of merits shall be required of the moving party. Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect. . . .”

Discussion

Defendant moves the court for relief pursuant to Code of Civil Procedure section 473, subdivision (b). (Motion, 3:3-5.) Specifically, Defendant moves the court to set aside the default, or alternatively, if default judgment has been entered at the time of hearing on this motion, that the default judgment is vacated. (Ibid.)

Defendant argues that a mistake of fact and excusable neglect can be established to set aside the default judgment entered since Defendant did not understand the timing for filing a responsive pleading and retained counsel after default was entered. (Id., 4:3-23.) Additionally, Defendant contends that she does have a valid defense to this action including res judicata and collateral estoppel. (Ibid.) Defendant argues that since there is strong public policy favoring trials on the merits, the court should grant Defendant’s motion. (Ibid.)

In opposition, Plaintiff argues that there was no excusable neglect, surprise, mistake, or inadvertence since Defendant waited 9 months 15 days after receiving Notice of Entry of Default to seek relief and Defendant’s motion does not evidence any viable excuse for the delay to afford discretionary relief. (Opp., 11:12-18.) Additionally, Plaintiff argues that Defendant’s counsel did not provide a declaration of attorney’s fault in Defendant’s motion to afford mandatory relief. (Id., 12:13-16.) Lastly, Plaintiff argues that the court should impose costs and sanctions against Defendant and her counsel of $10,000.00 for their bad faith delaying tactics of asserting to the court that a Motion for Relief from Default would be filed since December 22, 2023. (Id., 13:16-23.)

As of October 7, 2024, Defendant has not filed a reply to Plaintiff’s opposition.

It appears to the court that Defendant has not shown credible and competent evidence of mistake, inadvertence, surprise, and excusable neglect. Specifically, Defendant submitted declaratory evidence that indicates Defendant contests that she was ever properly served with the Complaint and Summons. (McLachlan Decl., ¶ 3.) Defendant’s counsel’s declaration also states that Defendant did become aware of the lawsuit and sought retention of counsel while the default was being entered on November 27, 2023. (Ibid.) Nevertheless, there is no additional information addressing Defendant’s argument that she was not properly served nor any evidence supporting that Defendant made a reasonable mistake when misunderstanding the timing to respond to Plaintiff’s complaint. Defendant has also not filed a reply to Plaintiff’s opposition and argument regarding the timeliness of this motion.

Additionally, Defendant’s counsel did not submit a proposed answer, demurrer, or other pleading to be filed upon setting aside of the default, even though it was stated that a copy of the proposed answer Defendant intends to file was attached as Exhibit A. (McLachlan Decl., ¶ 6.) “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 . . . .” (Code Civ. Proc., § 473, subd. (b).) This has been a strictly-enforced rule for over 100 years. (See Bailiff v. Hildebrandt (1920) 47 Cal.App. 564, 566–567.) Because Defendant’s counsel did not provide an accompanying pleading, the court must deny the motion.

However, the court does not agree that attorney’s fees are appropriate here. Defendant claims that this was a mistake by Defendant, not by Defendant’s counsel.

The motion is denied.

Conclusion

Defendant Genevieve Angel Dial’s Motion To Set Aside/Vacate Default Judgment is DENIED.