Judge: Theresa M. Traber, Case: 24STCV14899, Date: 2024-12-10 Tentative Ruling

Case Number: 24STCV14899    Hearing Date: December 10, 2024    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     December 10, 2024                TRIAL DATE: NOT SET

CASE:                         Andre Andraos v. Samuel Oganesyan

CASE NO.:                 24STCV14899           

MOTION TO SET ASIDE ENTRY OF DEFAULT

MOVING PARTY:               Defendant Samuel Oganesyan, in pro per

RESPONDING PARTY(S): Plaintiff Andre Andraos

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

            This is an action for breach of contract that was filed on June 13, 2024. Plaintiff alleges that Defendant failed to repay a loan.

Defendant moves to set aside the default entered on September 26, 2024.

TENTATIVE RULING:

Defendant’s Motion to Set Aside Default is GRANTED.

Defendant’s Answer filed with the Court on October 8, 2024 is deemed the operative Answer for this action.

DISCUSSION:

Defendant moves to set aside the default entered on September 26, 2024 under Code of Civil Procedure section 473.

Code of Civil Procedure section 473(b) provides in pertinent part:

The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment…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…was taken.

(Code Civ. Proc. § 473(b).) ‘[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. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981-82.)

Defendant was served by substituted service on June 29, 2024. (September 20, 2024 Proof of Substituted Service.) Defendant states that he consulted with an attorney regarding the retention of his services on or about July 22, 2024. (Declaration of Samuel Oganesyan ISO Mot. ¶ 8.) Defendant does not state whether he retained an attorney, and admits that he “was not sure” if the attorney with whom he consulted filed an answer on his behalf. (Id. ¶ 11.) Default was entered on September 26, 2024. (September 26, 2024 Request for Entry of Default.)

Plaintiff opposes this motion first on the grounds that it is procedurally defective in that it does not include a copy of the proposed answer. Strictly speaking, Plaintiff is correct that there is no proposed answer included with the moving papers. However, Defendant filed a belated Answer with the Court on October 8, 2024 and served that Answer on Plaintiff by mail. (See Proof of Service filed October 8, 2024.) As this filing is directly referenced in Defendant’s moving papers, the Court construes his late-filed Answer as a proposed Answer accompanying this motion.

Plaintiff also opposes the motion on the grounds that Defendant has not demonstrated mistake, inadvertence, surprise, or excusable neglect, because Defendant does not explain why he did not follow up with the attorney with whom he consulted, nor does he account for the period between the consultation and the entry of default. Although the Court agrees that Defendant’s explanation for the failure to answer is somewhat thin, the weight of authority strongly favors the granting of relief under Code of Civil Procedure section 473 when that statute is applicable. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981-82.) Certainly, Defendant’s declaration is tantamount to an admission of neglect, but the Court is not prepared to say that his neglect was inexcusable. Moreover, Defendant’s admission that he was uncertain of the status of the case is suggestive of mistake of fact, which is a separate ground for relief under Code of Civil Procedure section 473. Given the strong public policy in favor of relief, the Court finds that Defendant has made a sufficient showing to warrant relief from default.

CONCLUSION:

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

Defendant’s Answer filed with the Court on October 8, 2024 is deemed the operative Answer for this action.

Moving Party to give notice.

IT IS SO ORDERED.

Dated:  December 10, 2024                            ___________________________________

                                                                                    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.