Judge: Salvatore Sirna, Case: 22PSCV01615, Date: 2023-10-05 Tentative Ruling

The Court may change tentative rulings at any time. Therefore, counsel are advised to check this website periodically to determine whether any changes or updates have been made to the tentative ruling. Counsel may submit on a tentative ruling by calling the clerk in Department G at (909) 802-1104 prior to 8:30 a.m. the morning of the hearing.

Case Number: 22PSCV01615    Hearing Date: October 5, 2023    Dept: G

Defendant Mingwen Yao’s Motion to Set Aside Default

Respondent: NO OPPOSITION

TENTATIVE RULING

Defendant Mingwen Yao’s Motion to Set Aside Default is DENIED.

BACKGROUND

This is a breach of settlement action. On August 10, 2020, Plaintiff Qihui Yang entered into a written agreement with Mingwen Yao in which Yang agreed to invest $30,000 in Yao’s business, Worldyao Group (Worldyao), for a period of four months in exchange for investment profits of $15,000. After Yao failed to produce any profits or return Yang’s original investment, Yang filed an action against Yao and Worldyao on October 28, 2021. On February 23, 2022, Yang and Yao entered into a confidential settlement agreement in which Yao agreed to pay Yang back in the amount of $35,200. Specifically, Yao agreed to pay monthly installments of $3,000 at a fixed of interest rate of $352 until paid in full. After making five payments, Yang alleges Yao stopped making any further payments despite several demands from Yang.

On November 1, 2022, Yang filed a complaint against Yao, Worldyao, and Does 1-50, alleging the following causes of action: (1) breach of written agreement, (2) breach of confidential settlement agreement, (3) fraud and intentional misrepresentation, (4) promissory estoppel, (5) unjust enrichment, and (6) intentional infliction of emotional distress. On November 3, Yang’s registered process server personally served Yao and Worldyao in Diamond Bar.

On December 12, 2022, default was entered against Yao. On December 13, default was entered against Worldyao. On January 9, 2023, Yang submitted an application for default judgment that was denied by the court on March 30. On April 24, Yang submitted another application for default judgment that was granted by the court on June 12.

On September 7, 2023, Yao filed the present motion. A hearing on the motion is set for October 5.

ANALYSIS

Yao seeks to set aside the entry of default the grounds of mistake, inadvertence, surprise, and excusable neglect. For the following reasons, the court DENIES Yao’s motion.

Legal Standard

Whenever an application for relief from default judgment is made no more than six months after entry of judgment, is in proper form, and is accompanied by the moving party’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or excusable neglect, the court may vacate any (1) resulting default entered by the clerk against the moving party or (2) resulting default judgment or dismissal entered against the moving party, unless the court finds that the default or dismissal was not in fact caused by the moving party’s mistake, inadvertence, surprise, or excusable neglect. (Code Civ. Proc., §473, subd. (b).) “The six-month time limit for granting statutory relief is jurisdictional and the court may not consider a motion for relief made after that period has elapsed.” (Manson, Iver & York v. Black (2009) 176 Cal.App.4th 36, 42 (Manson).) That “six-month period runs from entry of default, not entry of judgment.” (Id.)

Courts liberally grant motions to vacate default judgments when relief is promptly sought and the opposing party is not prejudiced as the law strongly favors resolution on the merits. (Kramer v. Traditional Escrow, Inc. (2020) 56 Cal.App.5th 13, 28.) Courts only require “slight evidence” to support vacating a default and resolve all doubts in favor of the party seeking relief. (Ibid.) However, “[t]he 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.” (Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1206, quoting Elms v. Elms (1946) 72 Cal.App.2d 508, 513.)

Discussion

In this case, Yao’s motion to set aside default was filed on September 7, 2023, which is more than six months after the entry of default on December 12, 2022. Although Yao claims the motion is timely because it was filed within six months of the entry of default judgment, the “six-month period runs from entry of default, not entry of judgment.” (Manson, supra, 176 Cal.App.4th at p. 42.) Accordingly, because Yao did not timely request relief pursuant to Code of Civil Procedure section 473, subdivision (b), the court DENIES Yao’s motion.

CONCLUSION

Based on the foregoing, Yao’s motion to set aside default is DENIED.