2016-00190636-CU-PA

Latia Smith vs. Richard Kiser

Nature of Proceeding: Motion to Set Aside Default

Filed By: Gray, Wilma J.

Defendant Richard Kiser’s motion for reconsideration is DENIED.

Defendant moves for reconsideration of the Court’s 1/23/2018 order denying his motion to set aside default.

This is an action for personal injuries arising from a motor vehicle versus pedestrian accident. Defendant’s default was entered on 8/5/2016. Plaintiff filed a request for court judgment on 12/4/2017, however, no default judgment has yet been entered.

Defendant filed a motion to set aside default, which the Court denied. In denying the motion, the Court explained that: (1) the motion was untimely, and (2) Defendant failed to proffer his own declaration to show extrinsic mistake or fraud.

The party seeking reconsideration must base its motion “upon newly discovered facts, circumstances, or law.” (The New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 208.) The moving party must also provide “a satisfactory explanation for the failure to make the showing at or before the time the challenged order was issued.” (Id.) “The information must be such that the moving party could not, with reasonable diligence, have discovered or produced it.” (Id. at 213.)

In conjunction with the instant motion, Defendant has now filed his declaration. Missing, however, is any explanation as to why Defendant did not file a declaration in support of his motion to set aside default. Defendant’s counsel’s declaration does not assist in the matter. Defendant’s counsel, Wilma Gray, merely states that “as of the date of filing of the motion to set aside default, I had no opportunity to obtain the declaration of Richard Kiser.” (Declaration of Wilma Gray, ¶ 6.) Ms. Gray does not explain what efforts she undertook to obtain Defendant’s declaration in support of the motion for default.