Judge: Robert P. Dahlquist, Case: 37-2021-00007742-CU-PO-NC, Date: 2023-08-08 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - August 07, 2023

08/08/2023  01:30:00 PM  N-29 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Robert P Dahlquist

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Civil - Unlimited  PI/PD/WD - Other Motion Hearing (Civil) 37-2021-00007742-CU-PO-NC CULBERT VS WINSLOW [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion - Other, 06/26/2023

Defendant Kellen Boswell Winslow, II's motion to set aside default (ROA # 32) is granted.

The court is persuaded that defendant has presented sufficient evidence to warrant setting aside the default under CCP § 473. As noted by defendant in his reply brief (ROA # 42, at page 2), the California Supreme Court has stated: 'Section 473 is often applied liberally where the party in default moves promptly to seek relief, and the party opposing the motion will not suffer prejudice if relief is granted. In such situations, very slight evidence will be required to justify a court in setting aside the default.' Elston v. City of Turlock (1985) 38 Cal.3d 227, 233 (internal citations and quotation marks omitted).

Here, defendant has presented evidence indicating that (1) he was never actually served with the summons and complaint, and (2) he promptly sought relief after learning of the existence of the lawsuit.

Defendant's evidence is sufficient to grant relief in this instance. There is no time limit to challenge a default judgment where defendant claims lack of service. Sporn v. Home Depot USA, Inc. (2005) 126 Cal.App.4th 1294, 1300.

In addition, the law favors resolution of disputes on their merits, as opposed to resolution by default.

Therefore, the court will set aside the entry of default (ROA # 20) and the default judgment (ROA # 28).

Defendant shall file and serve his response to the complaint by no later than August 28, 2023. The court will conduct a case management conference on Oct. 27, 2023 at 11:00 am.

This is the tentative ruling for an appearance hearing (in person or remote) at 1:30 p.m. on Tuesday, August 8, 2023. If no party appears at the hearing, this tentative ruling will become the order of the Court as of August 8, 2023. If the parties are satisfied with the Court's tentative ruling or do not otherwise wish to argue the motion, they are encouraged to give notice to the Court and each other of their intention not to appear, though this notice is not required.

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