Kelkris Associates Inc vs. Russell Leon Cornett
Nature of Proceeding:
Filed By:
Motion to Set Aside
Cornett Jr., Russell Leon

Defendant Russell Leon Cornett, Jr.’s unopposed motion to set aside is granted.

A motion to set aside a default judgment is addressed to the sound discretion of the trial court. It is the policy of the law to favor, wherever possible, a hearing on the merits, and appellate courts are much more disposed to affirm an order where the result is to compel a trial upon the merits than they are when the judgment by default is allowed to stand and it appears that a substantial defense could be made. The 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. Weitz v. Yankosky (1966) 63 Cal. 2d 849, 854-855.

In this action in which Plaintiff seeks to collect costs associated with an abandoned vehicle pursuant to Vehicle Code § 22523 et seq., Defendant seeks to set aside a default he believes was entered pursuant to CCP § 473(b). Defendant argues that he was communicating with Plaintiff and did not file an answer to the lawsuit because he provided proof to Plaintiff that he did not own the subject vehicle and therefore was under the impression that an answer was not necessary. (Def.’s Decl. ¶¶ 2-6.) He states that he received a notice of entry of default two week prior to filing the motion and that he would have filed an answer had he known one was necessary. (Id. ¶¶ 6-7.) The Court finds that Defendant’s failure to file an answer was the result of mistake, inadvertence, surprise or excusable neglect sufficient to grant relief under CCP § 473(b).

The default and default judgment entered on November 15, 2013 are set aside.

No later than January 29, 2014, Defendant may file and serve the proposed answer attached to the motion.

The minute order is effective immediately. No formal order pursuant to CRC rule 3.1312 or other notice is required.