2018-00233085-CL-CL

Bank of America vs. Martha P. Quezada

Nature of Proceeding: Motion to Set Aside Default and Default Judgment

Filed By: Quezada, Martha P.

Self-represented Defendant Martha Quezada’s unopposed motion to set aside default and default judgment is granted.

In this consumer collection action Defendant moves to set aside the default and default judgment entered on this case on July 9, 2018 pursuant to CCP § 473(b).

Defendant’s declaration states that this is her second lawsuit and her prior lawsuit was with American Express. (Quezada Decl. ¶ 1.) She indicates that she was able to resolve her prior lawsuit and based on her experience she believed Plaintiff Bank of America would delay entering default because settlement discussions were underway. (Id. ¶ 2.) She states that unlike her previous case she ran into difficulties communicating with Plaintiff’s counsel because they were either unavailable or called while Defendant was driving and could not access her case materials or while she was busy at work. (Id. ¶ 3.) Defendant states that there were several calls back and forth and she believed they were diligently working towards resolution and had no reason to believe any further action would be taken. (Id. ¶ 4.) Defendant was surprised when she received Plaintiff’s requests to enter default and clerk’s judgment because she believed she was moving towards resolution without having to incur the expense of filing an answer. (Id. ¶ 5.) Had she realized that Plaintiff did not intend to delay default she would have filed the answer attached to her declaration. (Id. ¶ 6.) Defendant previously sought to set aside the default but the motion, though unopposed, was dropped because she miscalculated the service date by one day.

Because the law strongly favors trial and disposition of cases on the merits, any doubts in applying section 473 must be resolved in favor of the party seeking relief from default. (Waite v Southern Pacific Co. (1923) 192 Cal. 467.) CCP § 473 is to be liberally applied where the party in default moves promptly to seek relief, and the party opposing the motion will not suffer prejudice if relief is granted. (Elston v. City of Turlock (1985) 38 Cal.3d 227, 233.) In such situations, “very slight evidence will be required to justify a court in setting aside the default.” (Id, at p. 235.) It further bears noting that plaintiff is self-represented; such a party is to be treated like any other party and is entitled to the same, but no greater consideration than other litigants and attorneys. (Williams v. Pacific Mutual Life Ins. Co. (1986) 186 Cal. App. 3d 941, 944.) The “same” means just that; plaintiff was aware of defendant’s identity and were in negotiations with her when the default was entered. As has often been noted, where plaintiff’s counsel knows the identity of the lawyer representing defendant, he or she owes an ethical obligation to warn before requesting entry of defendant’s default. Failure to do so is a professional discourtesy to opposing counsel that will not be condoned by the courts: The quiet speed of plaintiffs’ attorney in seeking a default judgment without the knowledge of defendants’ counsel is not to be commended. Fasuyi v Permatex, Inc. (2008) 167 Cal.App.4th 681. This principle is no less applicable where a self-represented party is the defendant. “ ‘Even legitimate tactics must sometimes yield to the only goal that justifies the very existence of our judicial system; i.e., the resolution of our citizens’ disputes and the administration of justice.’ (

Brown v. Presley of So. Calif. (1989) 213 Cal. App. 3d 612, 620 … , fn. 3.)

Defendant’s showing is sufficient to show that the default and default judgment were the result of “mistake, inadvertence, surprise, or excusable neglect.” (CCP § 473(b).)

The default and default judgment entered on July 9, 2018 are set aside.

No later than October 22, 2018, Defendant shall file and serve the proposed answer attached as Exhibit A to her declaration.

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