RELIEF REQUESTED:
Order setting aside the default entered against Defendant, Karo Avdalyan

DISCUSSION:
This case arises from the Plaintiff’s claim that the Defendants breached agreements to pay him for legal services.
This hearing concerns the motion of the Defendant, Karo Avdalyan, to set aside the default entered against him on June 13, 2013.

The Defendant seeks relief under CCP section 473(b). CCP section 473(b) permits the Court to set aside a default and default judgment entered through mistake, inadvertence, surprise, or excusable neglect of an attorney. The statute itself requires that the person who seeks relief upon the theory of excusable neglect must show that the neglect was excusable. Transit Ads, Inc. v. Tanner Motor Livery, Ltd. (1969) 270 Cal. App. 2d 275, 279. The neglect to be excusable must be an act or omission which might have been committed by a reasonably prudent person under the same circumstances. Id.
In order to qualify for relief under CCP section 473(b), the moving party must act diligently is seeking relief. Elston v. City of Turlock (1985) 38 Cal.3d 227, 234. Diligence is an essential ingredient of a motion for relief under section 473. Ludka v. Memory Magnetics International (1972) 25 Cal. App. 3d 316, 321-322. Relief is not normally granted for unexplained delay of anything approaching three months after full knowledge of the entry of the order. Id.
Although the law favors trying all cases and controversies upon their merits, this does not relieve courts of the duty of scrutinizing carefully the affidavits or declarations filed in support of motions for relief to ascertain whether they set forth, with adequate particularity, grounds for relief. Transit Ads, Inc. v. Tanner Motor Livery, Ltd. (1969) 270 Cal. App. 2d 275, 282.

Here, a close examination of the initial declaration submitted by the Defendant, Karo Avdalyan, reveals that he does not set forth grounds for relief under CCP section 473(b) because he does not identify the mistake, inadvertence, surprise, or neglect that resulted in the entry of default. Mr. Avdalyan states that he has been searching for an attorney and that he has a “serious case of PTSD”. However, Mr. Avdalyan does not offer reason for his failure to file an answer to the Complaint or to appear and seek additional time to file an answer.
Further, the default was entered on June 13, 2013. The Defendant filed his motion exactly six months later, on December 13, 2013. The Defendant offers no facts to demonstrate that he acted with diligence. The Defendant offers no facts to explain the delay in seeking relief from the entry of default.

The original hearing for this motion was January 24, 2014. The Court continued the hearing so that the Defendant could submit a supplemental declaration. On February 7, 2014, the Defendant submitted a declaration from Wendy Freed, M.D., who is a licensed psychiatrist employed by the LA County Department of Mental Health. Dr. Freed provides facts regarding the Defendant’s mental illnesses. Further, Dr. Freed provides an opinion that the Defendant’s mental illnesses have interfered with his ability to attend to his legal needs. However, there are no facts that address the findings required under CCP section 473(b).
First, there are no facts demonstrating that the default was caused by surprise, inadvertence, mistake, or excusable neglect. There are no facts that address the Defendant’s failure to file an answer or the failure to appear and seek further time.
Second, there are no facts demonstrating that the Defendant acted with diligence. As noted above, the Defendant filed his motion exactly six months to the day after the default was entered. There are no facts whatsoever that explain the delay, e.g., what prompted him to file the motion exactly six months after the entry of default.
CCP section 473(b) does not authorize the Court to set aside a default because a party has a mental illness. Instead, it requires the party to demonstrate that the default was caused through surprise, inadvertence, mistake, or excusable neglect. The Defendant has failed to make the evidentiary showing of surprise, inadvertence, mistake, or excusable neglect required under CCP section 473(b) to obtain relief from the default entered against him.

Therefore, the Court will deny the Defendant’s motion to set aside the default under CCP section 473(b) because the Defendant did not provide sufficient facts in his declarations to demonstrate that he is entitled to relief or to demonstrate that he acted diligently in waiting six months before filing the pending motion.

RULING:
DENY motion to set aside the default.