Judge: Serena R. Murillo, Case: 20STCV34389, Date: 2022-12-15 Tentative Ruling

Case Number: 20STCV34389    Hearing Date: December 15, 2022    Dept: 29

TENTATIVE

20STCV34389 Fredi Antonio Perez Gonzalez v. A & R Villas, LLC

Motion to Set Aside Default filed by Defendant Marcello Baez is DENIED.

Background

              This action arises from injuries that Plaintiff Fredi Antonio Perez Gonzalez (“Plaintiff”) sustained by an automatic gate.

              On September 9, 2020, Plaintiff initiated this action against Defendants A & R Villas, LLC and Ramset Automatic Gate Systems, Inc, alleging the following causes of action: (1) premises liability; and (2) negligence. On January 3, 2022, Plaintiff filed an Amendment to Complaint adding Marcello Baez (“Baez”) as a named defendant. On May 4, 2022, default was entered against Baez for failing to answer the complaint.

              On November 18, 2022, Baez filed the instant motion to set aside default. Plaintiff opposes. 

Legal Standard

              Code of Civil Procedure § 473(b) provides in part: “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.”

              The discretionary prong of Code of Civil Procedure, § 473, subdivision (b) requires that an application for relief must be made no more than six months after entry of the order from which relief is sought and must be accompanied by an affidavit of fault attesting to the moving party’s mistake, inadvertence, surprise or neglect. (Code Civ. Proc., § 473, subd. (b); English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 143.)

In either case, the application must be made within a reasonable time, and in no case exceeding six months after the judgment. (Id.)

Discussion

              As a preliminary matter, it is noted that Baez failed again to comply with the service requirement set forth in Code of Civil Procedure § 1005. (See Berkley Decl. ¶ 13.) Nevertheless, Plaintiff has managed to file an opposition in response to the merits of the instant motion. Therefore, because of the lack of prejudice, the Court shall consider the motion.

A.      Merits

              Baez moves the Court to set aside default entered against him, arguing that his failure to respond was due to inadvertence, surprise, mistake or excusable neglect. Baez believed the person who hired him to work on the gate would have handled his lawsuit, but when he spoke to attorneys for Defendant Ramcast, he realized he was responsible to respond to the lawsuit.

              While a mistake of fact can occur when a person understands something to be other than what they are, the purported mistake here is not reasonable. (Hodge Sheet Metal Products v. Palm Springs Riviera Hotel (1961) 189 Cal.App.2d 653, 656.) The Court finds that Baez did not exercise reasonable care in determining whether it was his responsibility to respond to the lawsuit. His declaration fails to set forth when he spoke with attorneys for Defendant Ramcast or when he became aware that he was named in this lawsuit. Moreover, as pointed out by Plaintiff, Baez was notified of Plaintiff’s intention of requesting the Court to enter default against him on April 11, 2022. (Opposition at pg. 4; Berkeley ¶ 9, Exh. 2.) Even though Baez was notified on May 11, 2022 that a default was ultimately entered, he waited until November 18, 2022 to file the instant motion.

              Under these circumstances, the Court finds that a five-month delay is not reasonable. Furthermore, an exercise of ordinary prudence would have guarded against the entry of default. (Baratti v. Baratti (1952) 109 Cal.App.2d 917, 921; Elms v. Elms (1946) 72 Cal.App.2d 508, 513.) Thus, because Baez’s declaration does not establish that he exercised reasonable diligence, it cannot be found that the default was entered through his mistake, inadvertence, surprise, or excusable neglect pursuant to Code of Civil Procedure § 473(b). Additionally, the motion is defective because Baez has failed to include a proposed answer as required by statute.

              Accordingly, the Court denies the motion to set aside default.

Conclusion

              Based on the foregoing, Defendant Marcello Baez’s Motion to Set Aside Default is DENIED.

Moving party is ordered to give notice.