Dan Najera et al vs Leslie Kay Cavanagh et al
Case No: 17CV02439
Hearing Date: Fri May 10, 2019 9:30

Nature of Proceedings: Motion: Set Aside Default/File Answer

Tentative Ruling: The court grants defendant Rudolph Collaso’s motion for order setting aside default. The court orders the default entered on March 4, 2019, set aside and the answer attached to the motion shall be deemed served and filed as of May 10, 2019.

Background: On June 2, 2017, plaintiffs Arthur Najera and Barbara J. Najera, individually and as trustees for the Najera Trust UDT 3/6/2000, and Dan Najera filed their complaint for negligence, trespass, nuisance, and assault against defendants Leslie Kay Cavanagh and Rudolph Collaso. Plaintiffs allege that, on June 4, 2015, Collaso, Cavanagh’s employee and tenant, threatened Dan Najera with an axe and caused substantial damage to the property of Arthur and Barbara Najera.

On February 25, 2019, defendant Collaso, who is currently incarcerated in the California Rehabilitation Center in Norco, attempted to file a request to waive court fees and an answer to complaint. The court rejected that filing because the request for fee waiver was not accompanied by a statement of account certified by a California Department of Corrections and Rehabilitation (CDCR) official. On March 4, plaintiffs requested and the court entered Collaso’s default. Defendant Cavanagh answered the complaint on March 13.

Motion: On April 8, Collaso successfully filed a request to waive court fees, which the court granted, and a motion for an order setting aside the default. His proof of service indicates that counsel for plaintiffs was served with the motion and supporting documents by mail on April 14. There is no opposition on file with the court.

“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.)

A motion seeking such relief 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 Elston v. City of Turlock, 38 Cal.3d 227, 233 (1985), superseded by statute on other ground as recognized in Wilcox v. Birtwhistle, 21 Cal.4th 973, 979-980 (1999).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. “‘[T]he policy of the law is to have every litigated case tried upon its merits….’” Fasuyi v. Permatex, Inc., 167 Cal.App.4th 681, 696 (2008), quoting Au-Yang v. Barton, 21 Cal.4th 958, 963 (1999).

Collaso was unaware of the requirement of a certified statement of account from CDCR. A week after his fee waiver request and answer were rejected, the court entered his default. Just five weeks later, Collaso cured the defect in his pleadings and sought relief from default. He has acted diligently and has demonstrated reasonable cause for the default.

The court finds that default was entered due to Collaso’s mistake, inadvertence, and excusable neglect. The court grants defendant Rudolph Collaso’s motion for order setting aside default. The court orders the default entered on March 4, 2019 set aside and the answer attached to the motion shall be deemed served and filed as of May 10, 2019.