Judge: Theresa M. Traber, Case: 21STCV46537, Date: 2023-01-17 Tentative Ruling

Case Number: 21STCV46537    Hearing Date: January 17, 2023    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     January 17, 2023                   TRIAL DATE: NOT SET

CASE:                         George Hernandez v. Erika Castillo, et al.

CASE NO.:                 21STCV46537           

MOTION TO SET ASIDE DEFAULT/DEFAULT JUDGMENT

MOVING PARTY:               Defendant Cecila Reyes Nunez

RESPONDING PARTY(S): Plaintiff George Hernandez

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

            This is an action for elder abuse filed on December 21, 2021. Plaintiff alleges that Defendants defrauded him out of large sums of money.

Defendant Cecilia Reyes Nunez moves to set aside a default and default judgment entered against her.

TENTATIVE RULING:

Defendant’s Motion to Set Aside the Default and Default Judgment is GRANTED.

            Defendant is ordered to serve and file her answer within 10 days of the date of this order.

DISCUSSION:

            Defendant Cecilia Reyes Nunez moves to set aside a default and default judgment entered against her.

Missing Proof of Service

            Defendant has not included a proof of service with her motion. However, as Plaintiff has not objected to the motion on this basis, the Court will overlook the absence of proof of service and consider the motion on its merits.

Legal Standard

            The Court has the inherent authority to vacate a default and default judgment on equitable grounds such as extrinsic fraud or mistake. (Bae v. T.D. Service Co. of Arizona (2016) 245 Cal.App.4th 89, 97.) There is no time limit as to when a motion under the Court’s equitable powers may be brought. (See Kramer v. Traditional Escrow, Inc. (2020) 56 Cal.App.5th 13, 29.) However, the Court’s ability to grant relief under its inherent power is narrower than its power under Code of Civil Procedure section 473(b). (Carroll v. Abbot Laboratories, Inc. (1982) 32 Cal.3d 892, 901, fn.8.) Further, “[a] party who seeks to set aside a default judgment pursuant to the court's equity power must make a substantially stronger showing of the excusable nature of his or her neglect than is necessary to obtain relief under ... section 473.” (In re Marriage of Stevenot (1984) 154 Cal.App.3d 1051, 1074.) As stated by our Supreme Court, “[w]hen a default judgment has been obtained, equitable relief may be given only in exceptional circumstances. ‘[W]hen relief under section 473 is available, there is a strong public policy in favor of granting relief and allowing the requesting party his or her day in court. Beyond this period there is a strong public policy in favor of the finality of judgments and only in exceptional circumstances should relief be granted.’” (Rappleyea v. Cambpell (1994) 8 Cal.4th 975, 981-82.)

            A party seeking relief under the Court’s equitable powers must satisfy a “stringent” three-pronged test: (1) a satisfactory excuse for not presenting a defense; (2) a meritorious defense; and (3) diligence in seeking to set aside the default. (Rappleyea, supra, 8 Cal.4th at 982-83.)

Analysis

            Defendant Nunez moves to set aside the default and default judgment entered against her under the Court’s equitable authority.

1.      Satisfactory Excuse for Not Presenting a Defense

Defendant concedes that she was served by substituted service in March 2022 at her brother’s residence, rather than her own. (Declaration of Cecilia Reyes Nunez ISO Mot. ¶ 4.) Defendant contends that she did not file an answer to the Complaint because she did not understand the legal process and could not afford an attorney. (Id. ¶ 3.) In opposition, Plaintiff contends that this justification is not reasonable, without citation to any authority. In the Court’s view, Defendant’s justification for failing to timely respond to the Summons and Complaint is thin, especially under the more restrictive standard for relief under the Court’s equitable powers, rather than under Code of Civil Procedure section 473. That said, the Court also believes that it would constitute a miscarriage of justice to deny a defendant an opportunity to defend her case on the merits because she lacked the understanding of the process or the financial means to secure representation to exercise her rights. The Court therefore finds that, considering the totality of the circumstances presented, Defendant has presented a satisfactory excuse for not originally presenting a defense.

2.      Meritorious Defense

Defendant contends that she has a meritorious defense to this action in that she completely denies the veracity of all of Plaintiff’s allegations. Defendant has produced a proposed answer attached to the motion which generally denies the allegations in the Complaint and asserts numerous affirmative defenses, which, if proven, constitute a complete defense to this action. In opposition, Plaintiff improperly attacks the truth of Defendant’s denials in the proposed answer, which is not sufficient to establish that Defendant does not have a meritorious defense when Defendant has denied each of the allegations in the Complaint. The Court therefore finds that Defendant has demonstrated a meritorious defense to this action.

3.      Diligence in Seeking to Set Aside the Default

Defendant contends that she acted diligently in seeking to set aside the default.

There is an unofficial standard that, to set aside a default, a motion should be filed within three months of the party’s discovery of the default. (Benjamin v. Dalmo Mfg. Co. (1948) 31 Cal.2d 523, 529; Huh v. Wang (2007), 158 Cal.App.4th 1406, 1421-22.) 

Defendant contends that she first learned of the default on November 23, 2022, after she had hired her current legal counsel earlier that month. (Nunez Decl. ¶ 8.) The motion was filed the same date that Defendant contends she first learned that default was entered. The Court is not entirely convinced of the accuracy of Defendant’s statement. However, the gist of Defendant’s contention, which the Court does find credible, is that Defendant did not learn of the default until after she hired Attorney Zavala on November 11, 2022. (Id. ¶¶ 7-8.) Plaintiff again argues that Defendant did not act diligently but provides no factual justification for this contention nor citation to any authority in support of the contention. As the motion was filed less than two weeks after Attorney Zavala was hired, the Court concludes that, regardless of the exact date that Defendant learned of the default, Defendant certainly acted diligently in seeking to set the default aside.

CONCLUSION:

            Accordingly, Defendant’s Motion to Set Aside the Default and Default Judgment is GRANTED.

            Defendant is ordered to serve and file her answer within 10 days of the date of this order.

            Moving Party to give notice.

IT IS SO ORDERED.

Dated:  January 17, 2023                                ___________________________________

                                                                                    Theresa M. Traber

                                                                                    Judge of the Superior Court

            Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.