Judge: Walter P. Schwarm, Case: 30-2021-01195817, Date: 2022-08-09 Tentative Ruling
Defendant’s (Carlos Guassac) Motion to Set Aside Default (Motion), filed on 3-25-22 under ROA No. 37, is GRANTED.
Code of Civil Procedure section 473, subdivision (b), states, in relevant part, “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 . . . .”
Ron Burns Constructions Co., Inc. v. Moore (2010) 184 Cal.App.4th 1406, 1413 (disapproved on other grounds in Even Zohar Constr. & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830) states, “ ‘[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. [Citations.]’ [Citation.] Hence, ‘ “ ‘[t]he provisions of section 473 of the Code of Civil Procedure are to be liberally construed. . . .’ [Citation.]” [Citation.] . . . “[A]ny doubts in applying section 473 must be resolved in favor of the party seeking relief from default.” [Citation.]’ (Maynard v. Brandon (2005) 36 Cal.4th 364, 371–372, 30 Cal.Rptr.3d 558, 114 P.3d 795.) ‘Section 473 is often applied liberally where the party in default moves promptly to seek relief, and the party opposing the motion will not suffer prejudice if relief is granted. [Citations.] In such situations “very slight evidence will be required to justify a court in setting aside the default.” [Citations.]’ [Citation.]” [¶] “ ‘A motion seeking such relief lies within the sound discretion of the trial court, and the trial court's decision will not be overturned absent an abuse of discretion. [Citations.] However, the trial court's discretion is not unlimited and must be “ ‘exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice.’ ” [Citations.]’ (Elston v. City of Turlock, supra, 38 Cal.3d at p. 233, 211 Cal.Rptr. 416, 695 P.2d 713.) ‘[A] trial court order denying relief is scrutinized more carefully than an order permitting trial on the merits. [Citations.]’ [Citation.]”
Lasalle v. Vogel (2019) 36 Cal.App.5th 127, 134-135 (Lasalle), explains, “An order denying a motion to set aside a default is appealable from the ensuing default judgment. [Citation.] We acknowledge the standard of review for an order denying a set aside motion is abuse of discretion. [Citation.] But there is an important distinction in the way that discretion is measured in section 473 cases. The law favors judgments based on the merits, not procedural missteps. Our Supreme Court has repeatedly reminded us that in this area doubts must be resolved in favor of relief, with an order denying relief scrutinized more carefully than an order granting it. As Justice Mosk put it in Rappleyea, ‘Because the law favors disposing of cases on their merits, “any doubts in applying section 473 must be resolved in favor of the party seeking relief from default [citations]. Therefore, a trial court order denying relief is scrutinized more carefully than an order permitting trial on the merits.” (Elston v. City of Turlock (1985) 38 Cal.3d 227, 233 [211 Cal.Rptr. 416, 695 P.2d 713]; see also Miller v. City of Hermosa Beach (1993) 13 Cal.App.4th 1118, 1136 [17 Cal.Rptr.2d 408].)’ [Citation.] [¶] Warning and notice play a major role in this scrutiny. Six decades ago, when bench and bar conducted themselves as a profession, another appellate court, in language both apropos to our case and indicative of how law ought to be practiced, said, ‘The quiet speed of plaintiffs' attorney in seeking a default judgment without the knowledge of defendants' counsel is not to be commended.’ [Citation.]” (Footnotes 5 and 6 omitted; Italics in Lasalle.) “The second factor we consider is the short-fuse deadline given by respondent's counsel. It was unreasonably short. It set Vogel up to have her default taken immediately. ‘[T]he quiet taking of default on the beginning of the first day on which defendant's answer was delinquent was the sort of professional discourtesy which, under [Bookbinders] justified vacating the default.’ [Citation.]” (Id., at p. 138; Italics in LaSalle.)
Plaintiff’s Opposition to Motion to Set Aside Default (Motion), filed on 7-26-22 under ROA No. 47, asserts, “In the case at bar, Moving Party Defendant has not articulated any mistake, inadvertence, surprise, or excusable neglect. Moving Party Defendant had proper notice pursuant to valid service on 01/05/2022; Defendant sent a letter demanding dismissal on 01/27.2022; thereafter, Defendant did not timely file a responsive pleading.” (Opposition; 2:4-7.)
Here, on 1-27-22, Defendant sent Plaintiff’s (Roy N. Stone) counsel a letter indicating that Plaintiff’s action was time-barred. (Guassac Decl., ¶ 4 and Exhibit A.) Defendant states, “I now realize that I should have moved to quash service and demur earlier. I am representing myself and know that I am held to a high standard. I apologize for my excuse, delay, and inadvertence.” (Guassac Decl., ¶ 5.) The Motion states, “Carlos then attempted to meet and confer with Plaintiff, who responded by filing a default without bothering to respond to Carlos.” (Motion; 3:7-8.) Plaintiff’s Proof of Service shows that Defendant was personally served with the Summons and First Amended Complaint on 1-5-22. (Proof of Service filed on 2-7-22 under ROA No. 30.) It appears that Defendant’s responsive pleading was due on 2-4-22 which was a Friday. (Code of Civ. Proc., § 412.20, subdivision (a)(2).) On 2-7-22, the next court day, Plaintiff filed, and the court entered, Plaintiff’s Request for Entry of Default against Defendant.
The court finds that Defendant has made a sufficient showing of inadvertence, surprise, mistake, and/or excusable neglect for relief under Code of Civil Procedure section 473, subdivision (b). Before the expiration of the time to plead, Defendant attempted to meet and confer with Plaintiff by sending a letter on 1-27-22. Plaintiff acknowledges receipt of the letter but did not respond. Instead, Plaintiff requested Defendant’s default on February 7, 2022, one court day after the responsive pleading was due. There is no indication that Plaintiff warned Defendant before requesting entry of default. Based on Lasalle, the court finds that Defendant’s declaration combined with Plaintiff’s failure to advise Defendant that Plaintiff intended to seek default justifies setting aside the default entered on 2-7-22 under ROA No. 32.
Based on the above, the court GRANTS Defendant’s (Carlos Guassac) Motion to Set Aside Default filed on 3-25-22 under ROA No. 37. The court ORDERS Defendant to file and serve the Answer (without any changes, modifications, or amendments) that is attached to Defendant’s Reply to Opposition to Motion to Set Aside Default, filed on 8-1-22 under ROA No. 49, no later than 8-16-22.
Court Clerk is to give notice.