18-CIV-01828 NATIONAL LIABILITY & FIRE INSURANCE COMPANY VS. BRAD KIEFUS, ET AL.

NATIONAL LIABILITY & FIRE INSURANCE COMPANY BRAD KIEFUS
GARY A. BEMIS SAMUEL L. POOLER

MOTION FOR ORDER SETTING ASIDE AND VACATING DEFAULT AND DEFAULT JUDGMENT BY BRAD KIEFUS TENTATIVE RULING:

Defendant’s motion to set aside default and default judgment is DENIED.

Defendant’s belief that he did not need to respond to the complaint because he believed he could not be personally liable for the debt to Plaintiff was not reasonable. As with the defendant in Hopkins v. Carley, 200 Cal. App. 4th 1401 (2011), Defendant did not exercise reasonable diligence in arranging for his defense. As the court noted in that case:

. . . Before a defendant can secure relief under section 473(b) based on a failure to adequately defend himself, he must show that “‘in arranging for his defense … he has exercised such reasonable diligence as a man of ordinary prudence usually bestows upon important business.’” (Hearn v. Howard, supra, at p. 1206, 99 Cal.Rptr.3d 642, quoting Elms v. Elms, supra, at p. 513, 164 P.2d 936.) The law does not entitle a party to proceed experimentally without counsel and then turn back the clock if the experiment yields an adverse result. One who voluntarily represents himself “is not, for that reason, entitled to any more (or less) consideration than a lawyer. Thus, any alleged ignorance of legal matters or failure to properly represent himself can hardly constitute ‘mistake, inadvertence, surprise or excusable neglect’ as those terms are used in section 473.” (Goodson v. Bogerts, Inc. (1967) 252 Cal.App.2d 32, 40, 60 Cal.Rptr. 146.) Rather, “when a litigant accepts the risks of proceeding without counsel, he or she is stuck with the outcome, and has no greater opportunity to cast off an unfavorable judgment than he or she would if represented by counsel.” (Burnete v. La Casa Dana Apartments (2007) 148 Cal.App.4th 1262, 1267, 56 Cal.Rptr.3d 437.) Here as in the case just cited, when Gens claims to have made a mistake of law, “what he really means is not that he made a mistake of law when he attempted to put on his case at trial, but that he made a mistake in judgment when he chose to act as his own attorney.” (Ibid.) The “naïveté” of lay litigants in “rely[ing] on themselves to protect their substantial legal interests” does not afford a ground for relief from adverse results. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 979, 35 Cal.Rptr.2d 669, 884 P.2d 126.)

Id., at 1413-14. Defendant’s determination that he did not need to respond to the complaint based on the conclusion that he could not be personally responsible for the debt does not constitute excusable neglect or a mistake sufficient to justify relief pursuant to CCP § 473(b).

Additionally, Defendant’s motion is procedurally defective because he has not provided a proposed pleading in response to the complaint. CCP § 473(b) provides “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[.]” Defendant’s failure to provide a responsive pleading constitutes an independent basis for denial of the requested relief.

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for Plaintiff shall prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and provide written notice of the ruling to all parties who have appeared in the action, as required by law and the California Rules of Court.