Case Number: 18CMUD02612 Hearing Date: February 14, 2019 Dept: A

# Add-On 1. Dianne Herbert v. Sonya Thompson, et al

Case No.: 18CMUD02612

Matter on calendar for: motion to set aside/vacate judgment

Tentative ruling:

I. Background

This is an unlawful detainer action. Plaintiff Dianne Herbert prevailed after a bench trial; defendants Sonya Thompson and Raejon West did not appear at trial. Judgment was for possession, past due rent, holdover damages, costs, and attorney’s fees totaling $5,312.50.

On February 7, 2019, Thompson moved ex parte to set aside or vacate judgment. The Court stayed execution of the judgment and set the matter for hearing on February 14, 2019.

For the reasons set forth below, the Court denies the motion.

II. Standard

California Code of Civil Procedure § 473(b) allows the court to relieve a party from judgment, dismissal, order, or other proceeding for that party’s mistake, inadvertence, surprise, or excusable neglect. Mistake of fact is when a person understands facts to be other than they are. (Hodge Sheet Metal Products v. Palm Springs Riviera Hotel (1961) 189 Cal.App.2d 653.) Surprise denotes a condition or situation in which a party “is unexpectedly placed… without any default or negligence of his own… which ordinary prudence could not have guarded against.” (McGuire v. Drew (1890) 83 Cal. 225, 229.) An error is excusable if a reasonably prudent person under the same or similar circumstances might have made the same error. (Zamora v. Clayborn Contracting Group, Inc. (2002) 29 Cal.4th 249, 258.) [Citations omitted.]

III. Analysis

Thompson’s declaration argues that Herbert lied about personally serving her with the summons and complaint. The Court record shows that Thompson signed and filed an answer to the complaint on January 2, 2019, after her demurrer was overruled. Accordingly, Thompson appeared in the action; her argument that she was not served is unpersuasive. (C.C.P., § 1014.)

The motion to set aside judgment is denied.

IV. Ruling

The motion to set aside judgment is denied. The stay of judgment is lifted.