Case Number: VC065422 Hearing Date: July 21, 2016 Dept: SEC

ADRIAN RIVERA MAYNEZ ENTERPRISES, INC. v. TRUEERP, INC.
CASE NO.: VC065422
HEARING: 07/21/16

#8
TENTATIVE ORDER

Defendants TrueERP, Inc. and TrueERP USA, Inc.’s motion to set aside the April 27, 2016 entry of default is GRANTED. C.C.P. § 473(b).

The answer previously submitted and erroneously filed on April 28, 2016 is STRICKEN.

The proposed answer, attached to the motion as Exhibit A, is DEEMED SERVED AND FILED as of the hearing date.

Plaintiff ADRIAN RIVERA MAYNEZ ENTERPRISES, INC.’s arises out of an alleged breach of a software agreement with defendants. The pleading was filed on March 17, 2016 and served on March 21, 2016. See Proof of Service, filed 4/5/16.

Plaintiff obtained an entry of default on April 27, 2016. There is no default judgment.

Defendants seek an order setting aside the default, arguing that its entry was based on their mistake, inadvertence, surprise and/or excusable neglect. C.C.P. § 473(b). In support of their motion, they proffered the declaration of Joe Morin. Mr. Morin works for an entity that defendants hired to assist in restructuring the businesses. He attests to personal knowledge of issues related to the subject lawsuit. Plaintiff’s evidentiary objections to his declaration are OVERRULED.

Mr. Morin claims that the parties were engaged in settlement discussions in April 2016 and that defendants delayed in filing an answer for that reason. Additionally, it appears there was some confusion as to when the responsive pleading was due.

Plaintiff’s counsel submitted a declaration in opposition to the motion, wherein he states that he told Mr. Morin (a non-attorney) that defendants needed to respond or else a default would be taken. See Decl. of Marc Cohen. Plaintiff also argues that defendants have not met their statutory burden.

Although there is some dispute regarding the events of April 2016, the Court finds that defendants are entitled to relief. Section 473 is liberally construed to permit resolution on the merits of a case where possible. See, e.g. Berman v. Klassman (1971) 17 Cal.App.3d 900. Here, relief was sought promptly after the default was entered. The Court is unpersuaded by plaintiff’s argument that defendants failed to meet their burden such that they should be barred from defending this action. The motion to set aside default is granted.