Judge: Theodore R. Howard, Case: 22-1272680, Date: 2023-08-03 Tentative Ruling

Defendants Harfo Cargo Express, LLC, and Abdi Fitah Mohamud’s (Defendants” together) unopposed Motion to Set Aside (“Motion”) the default and default judgment is GRANTED.

Pursuant to Civ. Proc. Code § 473(b), the court may set aside a default and default judgment when they were obtained through the defaulting party’s mistake, inadvertence, surprise, or excusable neglect.  “[T]he policy of the law is to have every litigated case tried upon its merits, and it looks with disfavor upon a party, who, regardless of the merits of the case, attempts to take advantage of the mistake, surprise, inadvertence, or neglect of his adversary.”  (Lieberman v. Aetna Ins. Co. (1967) 249 Cal. App. 2d 515, 524.)  “A trial court has a wide discretion to grant relief under section 473 of the Code of Civil Procedure, and generally speaking, the action of the trial court in this respect will not be disturbed by an appellate court unless discretion has been palpably and manifestly abused. The policy of the law is that controversies should be heard and disposed of on their merits.”  (Berman v. Klassman (1972) 17 Cal. App. 3d 900, 909.)

Here, Defendants produced a declaration showing their mistaken belief that merely communicating with a Plaintiff instead of actually filing a responsive pleading was a proper response to a summons and complaint.  (Mohamud Decl. ¶ 5.)  Due to Defendants’ mistaken belief that simple communications between them and Plaintiff would resolve this matter and that communications alone were appropriate, Defendants inadvertently did not file a proper responsive pleading.

Failure to appear in the action within the period prescribed by law which was due to the inadvertent omission and/or mistake of a defendant supports setting aside a default.  (Benjamin v. Dalmo Mfg. Co. (1948) 31 Cal. 2d 523, 527 [Inadvertence]; Lieberman v. Aetna Ins. Co. (1967) 249 Cal. App. 2d 515, 527 [Mistake.])  The Motion was also filed within the six-month time limit noted in Civ. Proc. Code § 473(b).

The court GRANTS the Motion and orders the default and default judgment taken against Defendants to be set aside.

Defendants are ordered to file and serve their answer to the Complaint within five-days of the hearing.

Defendants to give notice.