Judge: Yolanda Orozco, Case: 21STCV45716, Date: 2022-11-14 Tentative Ruling

Case Number: 21STCV45716    Hearing Date: November 14, 2022    Dept: 31

MOTION TO SET ASIDE/VACATE DEFAULT IS GRANTED 

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 request for Default Judgment was DENIED because although Plaintiff presented evidence she was granted 50 percent interest in the subject property, Plaintiff failed to show why she was entitled to partition by sale or why 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. 

On October 24, 2022, the hearing was CONTINUED so that Defendant could file a supplemental declaration showing he was diligent in seeking to set aside the entry of default. 

On November 02, 2022, Defendant filed a supplemental declaration. 

On November 09, 2022, Plaintiff filed an opposition to the Motion. 

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 

The Court previously found that Defendant’s conclusory declaration that he was surprised that default had been entered and lack of any other explanation of why he had no knowledge of the pending suit were insufficient to grant relief under the Code of Civil Procedure section 473(b). (See Min. Or. 10/24.22.) 

Defendant asserts he has a “continuing disability from a work related injury since 2002, and [has] been on Social Security since 2008. This disability has affected my ability to remember and follow up on completing tasks.” (Armenta Decl. ¶ 2.) Defendant asserts that after he was served with the Complaint, he tried to obtain legal assistance but did not have the money to hire an attorney until recently. (Id. ¶ 3.) Defendant asserts that he was not aware that default had been taken and default judgment had been requested. (Id. ¶ 3.) 

In her opposing papers, Plaintiff points out that Defendant was present at the April 14, 2022, hearing when the Court, with the assistance of an interpreter, informed Defendant he was in default status. Plaintiff also asserts that Defendant was also present at the May 20, 2022 default judgment hearing. 

“A trial court's ruling granting discretionary relief under section 473, subdivision (b) ‘shall not be disturbed on appeal absent a clear showing of abuse.’ (Citation.) The scope of the trial court's discretion under section 473 is broad and its factual findings in the exercise of that discretion are entitled to deference.” (Minick v. City of Petaluma (2016) 3 Cal.App.5th 15, 24.) Given Defendant’s disability and inability to remember and follow up on tasks, it is possible that Defendant does not remember what was said at the hearings or that he understood the legal ramifications of the entry of default until he was able to secure counsel.  

Defendant moved to set aside the entry of default within the 6 months’ jurisdictional deadline, and also secured counsel, and attached the proposed pleading. 

Therefore, the Court finds that the interest of justice is served by allowing Defendant to Set Aside/Vacate the Default. “‘[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, 981–982.)  

Based on the foregoing, the Motion is GRANTED. 

Conclusion 

defendant’s Motion to Set Aside/Vacate Default is GRANTED. 

At the hearing, the parties should be prepared to discuss the setting of a trial date. 

Moving party to give notice.