2017-00207801-CU-FR

Gregory J. Gorski vs. Roxanne Cecot

Nature of Proceeding: Motion to Set Aside Default

Filed By: Weiner, Adam

Defendant Roxanne Cecot’s (“Cecot”) Motion to Set Aside Default is unopposed and is granted.

Plaintiff has filed a Notice of Non-Opposition, stating that he does not oppose the request to vacate the default.

This action was filed on February 9, 2017. Plaintiff Gregory Gorski (“Plaintiff”) filed a petition for Chapter 7 bankruptcy on May 19, 2017. Plaintiff filed a Notice of Automatic Stay on that same date.

On May 25, 2017 Cecot, who was in pro per at the time, filed a Demurrer to the Complaint. Plaintiff filed no opposition. On June 19, 2017, the Court sustained the

demurrer in part and overruled the demurrer in part. In its ruling, the Court noted that Plaintiff had filed a Notice of Automatic Stay based on his bankruptcy petition, but explained that “the bankruptcy of a plaintiff does not automatically stay an action filed by a plaintiff. Rather the action may become an asset of the bankruptcy estate.” (ROA 26.) The Court ordered Plaintiff to file an Amended Complaint on or before June 29, 2017. (Id.) Plaintiff failed to do so.

On July 13, 2018, Plaintiff filed a notice that the bankruptcy stay had terminated. On July 23, 2018, Plaintiff requested Cecot’s default. Cecot’s default was entered on July 23, 2018.

Cecot immediately retained counsel and has filed this Motion to Vacate Default pursuant to CCP section 473(b), on the grounds of confusion and surprise.

CCP § 473 is to be liberally applied where the party in default moves promptly to seek relief, and the party opposing the motion will not suffer prejudice if relief is granted. ( Elston v. City of Turlock (1985) 38 Cal.3d 227, 233.) In such situations, “very slight evidence will be required to justify a court in setting aside the default.” (Id, at p. 235.) 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.)

Here, Cecot has provided evidence that she was waiting for Plaintiff to file his amended complaint, and thus was confused and surprised when Plaintiff entered her default. (Cecot Decl. ¶¶ 6-9.) Indeed, it appears that default was erroneously entered, as there was no operative complaint for Cecot to answer at the time her default was taken. Thus, although Cecot has provided a proposed Answer with her motion, it would be improper to file an Answer where no operative complaint is on file.

The motion is granted. The default entered on July 23, 2018 is set aside. Default judgment has not been entered and thus there is no judgment to set aside. Plaintiff is ordered to file his Amended Complaint no later than December 7, 2018.

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