Judge: Yolanda Orozco, Case: 21STCV45716, Date: 2022-10-24 Tentative Ruling

Case Number: 21STCV45716    Hearing Date: October 24, 2022    Dept: 31

MOTION TO SET ASIDE/VACATE DEFAULT IS CONTINUED 

Background 

On December 14, 2021, Plaintiff Maria E. Raigoza (“Plaintiff”) filed this action against Defendant Juan F. Armenta (“Defendant”) and Does 1 to 100 for partition by sale of the real property located at 17319 Newmont Ave., Lancaster, CA (“Property”). 

On February 23, 2022, default was entered against Defendant. 

On May 20, 2022, Plaintiff’s Motion for Default Judgment was denied in part because Plaintiff failed to show she was entitled to partition by sale or why a partition by sale is more equitable than division of the subject property. (Min. Or. 05/20/22.) 

On August 02, 2022, Defendant moved to Set Aside/Vacate the Entry of Default. No opposition has been filed. 

Legal Standard 

“Section 473(b) provides for both discretionary and mandatory relief.¿ [Citation.]”¿ (Pagnini v. Union Bank, N.A. (2018) 28 Cal.App.5th 298, 302.)¿ An application for relief under this section must be made no more than six months after entry of the judgment, dismissal, order, or other proceeding from which relief is sought and must be accompanied by an affidavit of fault attesting to the mistake, inadvertence, surprise or neglect of the moving party or its attorney. (Code Civ. Proc., § 473, subd. (b); English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 143.) In addition, an application for relief under this section “shall be accompanied by a copy of the answer or other pleading proposed to be filed herein, otherwise the application shall not be granted.” (Code Civ. Proc., § 473, subd. (b).) Relief under this section is mandatory when based on an attorney affidavit of fault; otherwise, it is discretionary. (Id.) When relief from default and default judgment is based on an attorney affidavit of fault, the six-month period starts to run from the date of the entry of the default judgment. (Code Civ. Proc., § 473, sub. (b); Sugasawara v. Newland (1994) 27 Cal.App.4th 294, 295.)¿ 

Discussion 

Defendant asserts that good cause exists to set aside the entry of default because Defendant had no knowledge of the pending suit, the service of summons and Complaint and/or request for Default or Default Judgment. (Armenta Decl. ¶ 2.) Defendant attaches a copy of the proposed Answer as Exhibit 1 to the Motion. 

The proof of service filed on February 03, 2022, was served by a registered California process server by personal service on Defendant on January 10, 2022. 

Defendant offers no other explanation as to why he had no knowledge of the pending suit or why he did not move promptly to set aside the entry of default. Without more information, this Court cannot find that Defendant was diligent in seeking to set aside the entry of default. (Huh v. Wang (2007) 158 Cal.App.4th 1406, 1420 [“a threshold requirement for relief is the moving party's diligence.”].) 

“Where the mistake is excusable and the party seeking relief has been diligent, courts have often granted relief pursuant to the discretionary relief provision of section 473 if no prejudice to the opposing party will ensue.” (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 258.) 

Defendant’s conclusory declaration that he was surprised that default had been entered, is insufficient to show that he was diligent in seeking to set aside the entry of default or why he was unaware that the summons and complaint had been served. 

Based on the foregoing, the Motion is CONTINUED so that Defendant may file a supplemental declaration which adequately meets the statutory and case law requirements. 

Conclusion 

defendant’s Motion to Set Aside/Vacate Default is CONTINUED to November 14, 2022. 

Defendant is ordered to give notice.