David G. Bertrand, et al. v. Jessica Berry
Case No: 19CV02429
Hearing Date: Mon Sep 23, 2019 9:30

Nature of Proceedings: Motion Set Aside Default

David G. Bertrand, et al., v. Jessica Berry, #19CV02429, Judge Sterne

Hearing Date: September 23, 2019

Matter: Motion for Order Setting Aside Default

Attorneys:

For Plaintiff: Mark T. Coffin

Defendant: self-represented

Tentative Ruling: The court grants the motion for order setting aside default; orders the default entered on August 13, 2019 set aside; and orders the general denial filed herein on August 6 is deemed filed as of this date.

Background: On May 7, 2019, plaintiffs David G. Bertrand and Dorothy Churchill-Johnson filed their complaint against defendant Jessica Berry for 1) libel, 2) defamation per se, 3) intrusion, 4) intentional infliction of emotional distress, 5) unfair business practices, 6) elder abuse, 7) quantum meruit, and 8) unjust enrichment/restitution. On May 29, the court entered an order allowing service by publication.

On August 5, plaintiffs filed a request for entry of default. On August 6, defendant filed a general denial. On August 13, by minute order, the court deemed the request for entry of default filed and entered and vacated the general denial.

Motion to Set Aside Default: Defendant moves to set aside the default and default judgment. (There is no default judgment.) She says the published notice was in a newspaper that she does not read is published in a town she does not live in. She lives in Santa Ynez and the publication was in the Santa Barbara News Press. She says she did not know of the suit until July 22, when she was given a copy in open court at a hearing in another matter.

Plaintiffs oppose the motion, arguing that defendant cannot truthfully demonstrate mistake, inadvertence, surprise, or excusable neglect. When she was given the complaint and summons on July 22, plaintiffs’ counsel informed defendant that she had approximately one week to answer. The court pointed out that the response was actually due on August 5.

“The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” (CCP § 473(b).) “Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (Id.)

The motion does not include a copy of a proposed answer. However, the court has in its records the general denial that defendant filed on August 6. The court will treat that pleading as the proposed answer.

A motion seeking such relief under CCP § 473 lies within the sound discretion of the trial court. Elston v. City of Turlock, 38 Cal.3d 227, 233 (1985), superseded by statute on other ground as recognized in Wilcox v. Birtwhistle, 21 Cal.4th 973, 979-980 (1999). “[B]ecause the law strongly favors trial and disposition on the merits, any doubts in applying section 473 must be resolved in favor of the party seeking relief from default.” Id. However, “the moving party must act diligently in seeking relief and must submit affidavits or testimony demonstrating a reasonable cause for the default.” Id. at 234. “The test of whether neglect was excusable is whether ‘a reasonably prudent person under the same or similar circumstances’ might have made the same error.” Luri v. Greenwald, 107 Cal.App.4th 1119, 1128 (2003).

Where the only true prejudice to the plaintiff is that she will now have to go back and try the case on the merits, “since the law strongly favors trial and disposition on the merits, there is no prejudice.” Rogalski v. Nabers Cadillac, 11 Cal.App.4th 816, 822 (1992).

It appears that defendant first learned of this action on July 22. Counsel informed her of a due date a week later, but it was really 14 days later. Defendant filed her answer on August 6, just one day late. Once informed that the court had vacated her answer, defendant filed this motion just nine days later. She has acted with reasonable diligence.

A reasonably prudent person might reasonably have missed the deadline for filing an answer when she was given notice only 14 days before that deadline. The court finds no prejudice to plaintiffs. Therefore, the court grants the motion for order setting aside default; orders the default entered on August 13, 2019 set aside; and orders the general denial filed herein on August 6 is deemed filed as of this date.