Judge: Virginia Keeny, Case: 22VECV02530, Date: 2023-05-04 Tentative Ruling

Case Number: 22VECV02530    Hearing Date: May 4, 2023    Dept: W

ANGELINA & KATHERINE GARDEN LLC V. KIMBERLY MEDELIN, et al.

Defendant edgar ramirez’s motion to set aside default  

Date of Hearing:        May 4, 2023                                                   Trial Date:       None set. 

Department:              W                                                                    Case No.:        22VECV02530

Moving Party:            Defendant Edgar Ramirez

Responding Party:     No opposition.

BACKGROUND

This is an unlawful detainer action. Plaintiff filed a 15-Day Notice to Pay Rent or Quit. On December 22, 2022, Plaintiff Angelina & Katherine Garden LLC filed a complaint against Defendants Kimberly Medelin, Edgar A. Ramirez, Karla Alejandra Alba Michel, and Marta Molina.

[Tentative] Ruling

Defendant Edgar Ramirez’s Motion to Set Aside Default is GRANTED  

discussion

Defendant Edgar Ramirez moves the court to set aside the default entered on January 27, 2023 on the grounds the default judgment was entered due to Defendant’s excusable neglect and that if the complaint fails to properly state a cause of action, a default judgment cannot stand. (See Kim v. Westmoore Partners, Inc. (2011) 201 Cal.App.4th 267, 281.)

The court may, upon any 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. (CCP §473(b).)

Defendant Edgar Ramirez contends he believed his co-Defendant Martha Molina’s answer was applicable to him and constituted an answer for the entire family. As a result, Defendant Ramirez did not answer. Once Defendant Ramirez discovered he needed to file his own answer, he filed his answer February 3, 2023. Because the clerk accepted his answer, he believed his answer was valid and had been accepted by the court.

The court finds Defendant Ramirez has established mistake on his part and sets aside the default entered against Defendant Ramirez. Defendant Ramirez has submitted a declaration attesting to his mistake. As noted above, Defendant Ramirez, under penalty of perjury, attests he believed his sister’s answer was applicable to him. (Ramirez Decl. ¶3.) When he learned he also was required to file an answer, he did so immediately. (Ramirez Decl. ¶4.) However, default had already been entered against him.

The motion is unopposed.

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