Judge: Richard S. Whitney, Case: 37-2022-00044830-CU-BC-CTL, Date: 2024-06-07 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - June 05, 2024

06/07/2024  10:30:00 AM  C-68 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Richard S. Whitney

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Civil - Unlimited  Breach of Contract/Warranty Motion to Dismiss 37-2022-00044830-CU-BC-CTL SOUTHWEST EQUITY PARTNERS INC VS RENNELLS [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING: DEFENDANT ZULAY RENNELLS' UNOPPOSED MOTION TO VACATE DEFAULT is GRANTED.

Defendant ZULAY RENNELLS ('Defendant') moves to set aside the default judgment entered against it pursuant CCP section 473(b). Failure to file an opposition to the motion indicates the other parties' acquiescence that the motion is meritorious. (L.R. 2.1.19(B) ['The court may deem a lack of opposition to be a concession that a motion is meritorious']; See California Rules of Court, Rule 8.54(c).) CCP section 473(b) provides, in part: 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. The court shall, whenever relief is granted based on an attorney's affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties. However, this section shall not lengthen the time within which an action shall be brought to trial pursuant to Section 583.310.

(Code Civ. Proc., § 473(b) [Emphasis added].) This is the mandatory portion of the statute.

The discretionary portion provides: 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(b).) CCP section 473 'is a remedial measure to be liberally construed, any doubts existing as to the propriety of the trial court's action will be resolved in favor of a hearing on the merits.' (Berman v. Klassman (1971) 17 Cal.App.3d 900, 910.) '[W]here there would have been no real Calendar No.: Event ID:  TENTATIVE RULINGS

3063604  66 CASE NUMBER: CASE TITLE:  SOUTHWEST EQUITY PARTNERS INC VS RENNELLS [IMAGED]  37-2022-00044830-CU-BC-CTL prejudice had the set-aside motion been granted, the rule is that a party's negligence in allowing a default to be taken in the first place 'will be excused on a weak showing.'' (Lasalle v. Vogel (2019) 36 Cal.App.5th 127, 140 [Citation omitted].) The Court entered judgment on June 16, 2023, after default was entered on December 20, 2022. (ROA # 11 and 23.) Plaintiffs filed this motion on December 11, 2023, within six months of entry of judgment.

Defendant explains in a declaration that Defendant mistakenly believed the matter was resolved when the unlawful detainer action was resolved based on communications with Defendant's former counsel.

(Decl. Rennells.) The Court is satisfied that Plaintiff has demonstrated 'mistake, inadvertence, surprise, or excusable neglect' to warrant the granting of the motion. Further, the motion is accompanied by a proposed answer. The unopposed motion is granted.

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