2012-00132693-CL-BC

Lobel Financial Corp. vs. Eileen E. Flores

Nature of Proceeding: Motion to Vacate Default

Filed By: Flores, Eileen

Defendant Eileen Flores’ motion to vacate default is granted.

In this action, Defendant seeks to vacate the default and default judgment entered on
July 29, 2013.

First, Plaintiff is correct in its opposition that Defendant has incorrectly cited to the
Federal Rules of Civil Procedure as a basis upon which to vacate the default. The
Court is governed by California law, not the Federal Rules of Civil Procedure.
Nonetheless, the Court will not deny the motion on this basis as the motion cites
California case law discussing the standards for relief from default pursuant to Code of
Civil Procedure § 473(b). (Motion p.6:22-27.)

The Court finds Defendant has shown that the default and default judgment were
entered as a result of mistake, inadvertence, surprise or excusable neglect. Indeed,
Defendant has shown that she attempted to file a response to the complaint in this
action but the pleading she attempted to file was rejected by the clerk a number of
times, first for failing to have a proof of service and second for failing to pay a filing fee,
even though she had a fee waiver on file. The Court’s file confirms this chronology .
Defendant submitted a declaration from the person she had file the response with the
Court who declares that some time in late February, she served Defendant’s response
along with a proof of service. (Silva Decl. [attached as Exh. 21 to Defendant’s
motion].) Thus, the Court finds that the default entered on February 19, 2013, was the
result of mistake, inadvertence, surprise or excusable neglect as Defendant made
reasonable attempts to get her response on file prior to entry of default. 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, 470-471.)

The Court notes Plaintiff’s opposition which claims Defendant submitted no admissible
evidence because her declaration was not submitted under penalty of perjury.
However, the circumstances reflected in that declaration are confirmed by the Court’s
own file. In addition, the declaration from the individual who served the response to
the complaint was executed under penalty of perjury. Further, Defendant submitted an
amended declaration on October 1, 2013, well in advance of the hearing which was
properly executed under penalty of perjury. Further, the motion is not, as Plaintiff argues, an attempt to reconsider the Court’s
order denying her motion to quash service of summons in January 2013. Indeed, the
instant motion seeks to set aside a default and default judgment while the motion to
quash attacked the manner in which Plaintiff served the complaint.

In addition, the Court rejects the argument that Defendant failed to demonstrate that
the motion was brought within a reasonable time. Indeed, the motion was filed on
August 19, 2013, weeks after default judgment was entered on July 29, 2013. To the
extent Plaintiff is arguing Defendant unreasonably delayed in filing the motion from the
date default was entered in February 2013, the Court also rejects that argument as the
evidence shows Defendant did not receive notice that her response to the complaint
was rejected until after default was entered and that she continued to attempt to file a
response to comply with the clerk’s reasons for rejection after that time. In fact, she
even received a rejection notice in April 2013 which indicated that her response was
rejected, not because she was in default, but because she did not pay a filing fee or
have a proof of service. The clerk then accepted her response in May 2013 and there
is no indication Defendant ever received notice that her default was entered until
default judgment was entered in July 2013 at which point she promptly sough relief.

The Court also rejects Plaintiff’s claim of prejudice. The fact Plaintiff incurred
“recording and marshal fees” and fees for opposing the instant motion is not the type
of prejudice that would overcome California’s policy that cases should be decided on
their merits.

The Court also rejects Plaintiff’s argument that Defendant has no meritorious defense.
Indeed, Defendant need not show a meritorious defense to obtain relief pursuant to
CCP § 473(b). The plain language of the statute provides that “[n]o affidavit or
declaration of merits shall be required of the moving party.” (CCP § 473(b); see also
th
Shapiro v. Clark (2008) 164 Cal.App.4 1128, 1144 [“respondents’ legal premise-that
appellant must affirmatively demonstrate a ‘meritorious’ defense-is incorrect”].) The
cases cited by Plaintiff predate the amendment to CCP § 473 making clear that a
meritorious defense need not be shown.

While no proposed pleading was filed with the initial motion that was filed on August
19, 2013, Defendant filed a proposed answer with a document she filed on October 1,
2013, in which she sought leave to amend to file the proposed answer. However, as
default and default judgment were entered as of the time Defendant filed that
document, Defendant could not file a motion for leave to amend. Instead, the Court
simply construes that document as the proposed pleading that she intended to file in
the event the default and default judgment were set aside as required by CCP § 473
(b).

Finally, the Court rejects Plaintiff’s request that the Court condition relief on Defendant
posting a bond for any judgment that may be entered against her. Under the
circumstances of this case, such a condition would be entirely unreasonable as the
“burden it imposes upon the defendant [who, defendant asserts, has been granted a
fee waiver in this case] is wholly out of proportion to the burden imposed on the
plaintiff by the default and its vacation.” (Kirkwood v. Superior Court (1967) 253
Cal.App.2d 198, 202.) Indeed, Plaintiff has made no showing of any legitimate burden.

As a result, the default and default judgment entered in this case are ordered set aside. No later than November 21, 2013, Defendant shall file and serve the proposed
answer attached as an exhibit to her October 1, 2013, filing.

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