Case Number: KC066523    Hearing Date: July 08, 2014    Dept: O

Casas v. Romo, et al. (KC066523)

Defendant Romo’s MOTION TO SET ASIDE ENTRY OF DEFAULT

Respondent: Plaintiff Casas

TENTATIVE RULING

Defendant Romo’s motion to set aside entry of default is GRANTED. Defendant’s Answer is deemed filed this date. Sanctions are imposed against the Defendant in the sum of $500, payable to Plaintiff within 30 days.

TIMELINESS:
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. However, in the case of a judgment, dismissal, order, or other proceeding determining the ownership or right to possession of real or personal property, without extending the six-month period, WHEN A NOTICE IN WRITING IS PERSONALLY SERVED within the State of California both upon the party against whom the judgment, dismissal, order, or other proceeding has been taken, and upon his or her attorney of record, if any, NOTIFYING THAT PARTY AND HIS OR HER ATTORNEY OF RECORD, IF ANY, THAT THE ORDER, JUDGMENT, DISMISSAL, OR OTHER PROCEEDING WAS TAKEN AGAINST HIM OR HER AND THAT ANY RIGHTS THE PARTY HAS TO APPLY FOR RELIEF UNDER THE PROVISIONS OF SECTION 473 OF THE CODE OF CIVIL PROCEDURE SHALL EXPIRE 90 DAYS AFTER SERVICE OF THE NOTICE, then the application shall be made within 90 days after service of the notice upon the defaulting party or his or her attorney of record, if any, whichever service shall be later. (CCP 473(b).)

Although this matter concerns property, Plaintiff has not presented evidence that the Notice was “personally served” and Plaintiff had notified Defendants that relief “shall expire 90 days after service of the Notice.” The 90-day deadline therefore does not apply. The motion is timely filed under the 6-month deadline pursuant to CCP 473(b).

MERITS:
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. 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. (CCP 473(b).) Whenever the court grants relief from a default, default judgment, or dismissal based on any of the provisions of this section, the court may do any of the following: (A) Impose a penalty of no greater than one thousand dollars ($1,000) upon an offending attorney or party. (B) Direct that an offending attorney pay an amount no greater than one thousand dollars ($1,000) to the State Bar Client Security Fund. (C) Grant other relief as is appropriate. (CCP 473(c)(1).)

The court accepts Defendant’s declaration, attesting that he was mistaken in the manner he was supposed to respond to the Complaint. Instead of filing an Answer, Plaintiff personally appeared at the CMC on 4/16/14, with the contract, evidencing that he paid the full purchase price for the property. (Romo Decl., Par. 6.) The court finds that such constitutes mistake and/or excusable neglect. Motion is GRANTED. Defendant’s Answer is deemed filed this date.

Sanctions are imposed against the Defendant in the sum of $500, payable to Plaintiff within 30 days.