2017-00218573-CL-PO

Tamishia Clayborn vs. Alina Danilyuk

Nature of Proceeding: Motion to Set Aside Default

Filed By: Mino, Greg T.

Defendant Alina Danilyuk’s unopposed motion to set aside default is granted.

In this personal injury accident, Defendant moves to set aside the default entered against her in this action on March 22, 2018 pursuant to CCP § 473(b).

Defendant indicates that initially Plaintiff’s counsel was in contact with her insurance carrier in an attempt to settle the matter. After those discussions were unsuccessful, Plaintiff attempted to serve Defendant with the complaint. The insurance carrier provided Plaintiff’s counsel with Defendant’s email address and on January 3, 2018, Plaintiff’s counsel emailed Defendant the summons and complaint and a notice of acknowledgment and receipt. Defendant was not represented by counsel at that time. As of February 15, 2018, Defendant had not responded to the email and it was discovered that she had changed her email address. Defendant provided her new email address to Plaintiff’s counsel during a conference call and on February 15, 2018 signed the notice of acknowledgement and receipt. On March 19, 2018, Defendant sent an answer to the Court to be filed. That same day Plaintiff served a request for entry of default. Both the answer and the request for entry of default were received by the Court on March 22, 2018. However, the default was entered. Defendant’s answer was rejected by the Court due to the entry of default.

Here, relief is appropriate. Defendant argues that she never properly consented to service by email because she was unrepresented when she provided her email address to Plaintiff’s counsel and she did not serve the notice of consent to electronic service required by CRC Rule 2.251(b)(1). The Court need not resolve that argument because even assuming she properly consented, Defendant has shown that, she mailed her answer to the Court on March 19, 2018, which was two days before the time her answer to the complaint would have been due if service was proper. Plaintiff served the request for entry of default on March 19, 2018, which was two days prior to the time Defendant’s answer was actually due (assuming email service was proper). The Court received both documents on March 22, 2018. Defendant’s counsel indicates that his office is in the same county as the Court’s and that in his experience documents mailed to the Court are usually filed within two business day but in this instance it took three days and Defendant’s default was entered prior to the time her Answer was to be filed. Defendant’s counsel contacted Plaintiff’s counsel requesting that counsel voluntarily set aside the default but Plaintiff’s counsel did not respond.

Defendant’s showing is sufficient to indicate that Defendant’s default was entered as a

result of mistake, inadvertence, surprise, or excusable neglect. (CCP § 473(b).) As the Court has said numerous times, it is California’s “policy that cases should be decided on their merits.” (Smeltzley v. Nicholson Mfg. Co. (1977) 18 Cal.3d 932, 936.)

The motion is granted. The default entered on March 22, 2018 is set aside.

No later than June, 14, 2018, Defendant shall file and serve the proposed answer attached as an exhibit to Defendant’s counsel’s declaration.

Defendant’s request for sanctions pursuant to CCP § 437(c)(1)(A) is denied. This request was only made in the memorandum of points and authorities. The notice of motion failed to request sanctions.