Judge: Serena R. Murillo, Case: 21STCV32000, Date: 2023-08-15 Tentative Ruling

Case Number: 21STCV32000    Hearing Date: August 15, 2023    Dept: 31

TENTATIVEDefendant’s motion to set aside default is CONTINUED for 30 days (date to be set at the hearing) for failure to provide timely notice of the motion.

Legal Standard 

Code of Civil Procedure, section 473, subdivision (b) provides for two distinct types of relief—commonly differentiated as “discretionary” and “mandatory”—from certain prior actions or proceedings in the trial court.  (Luri v. Greenwald (2003) 107 Cal.App.4th 1119, 1124 (Luri).)   

The discretionary portion of section 473, subdivision (b) provides: “The court may, upon 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, subd. (b).) 

The mandatory portion of section 473 requires the court to, “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.”  (Code Civ. Proc., § 473, subd. (b).)  A timely mea culpa declaration by a plaintiff’s attorney establishing that a dismissal was taken against her client as a result of attorney mistake, inadvertence, or neglect deprives the court of the discretion to deny relief.  (Tackett v. City of Huntington Beach (1994) 22 Cal.App.4th 60, 65.)   

Discussion

Defendant moves to set aside entry of default and default judgment due to inadvertence, surprise, and excusable neglect.

Code of Civil Procedure section 1005(b) states: “…all moving and supporting papers shall be served and filed at least 16 court days before the hearing…. However, if the notice is served by mail, the required 16-day period of notice before the hearing shall be increased by five calendar days if the place of mailing and the place of address are within the State of California.” (CCP section 1005(b).)

Here, Defendant filed proof of service showing that he served Plaintiff on August 8, 2023. The motion is set for August 15, 2023. This is only 7 calendar days’ notice. Therefore, Defendant did not serve Plaintiff within 16 court days, plus 5 calendar days of the hearing on this motion.

As a result, the motion must be continued again.

Conclusion

Accordingly, Defendant’s motion to set aside default is CONTINUED.  Court Clerk to give ordered to give notice.