MOTION TO SET ASIDE/VACATE DEFAULT
CASE MANAGEMENT CONFERENCE – CONTINUED TO 08/17/2026 AT 1:30 p.m.
105 Kim v Downing, 2024- MOTION TO SET ASIDE/VACATE DEFAULT – 01445812 GRANTED
Defendant Hertz Vehicles LLC (“Hertz”) moves to set aside the default entered against it by plaintiff Kelly Kyoungseon Kim. Hertz seeks relief under Code of Civil Procedure sections 473(b) and 473.5 and equitable relief under the Court’s inherent power.
The Court finds that relief under sections 473(b) and 473.5 cannot be granted, as this Motion was brought more than six months after the entry of default and there is no evidence showing that Hertz did not have actual notice of the lawsuit before default was entered.
“After six months from entry of default, a trial court may still vacate a default on equitable grounds even if statutory relief is unavailable.” (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981.) The law strongly favors an exercise of discretion in favor of granting relief so that matters can be heard on their merits. (Shapiro v. Clark (2008) 164 Cal.App.4th 1128, 1139.)
Counsel’s declaration establishes that counsel for Hertz failed to file an answer on the mistaken belief that the copy of the complaint in their possession had been informally obtained and proper service had not yet been made. Counsel learned of the default on March 20, 2026. This Motion was filed shortly thereafter on April 2, 2026.
The Motion is unopposed and there is no evidence that Plaintiff will suffer prejudice if the Motion is granted. Hertz’s counsel moved promptly once the entry of default was discovered. Thus, the Court finds that equitable relief is warranted.
In light of the above, the Motion to Set Aside is GRANTED. Hertz is ordered to file and serve its answer to the complaint within 20 days.
Moving party to give notice. 106 Kirton v Selene DEMURRER TO AMENDED COMPLAINT – Finance, 2025- SUSTAINED WITH LEAVE TO AMEND 01481861 Defendants Selene Finance LP and U.S. Bank Trust, as trustee of the VRMTG Asset Trust’s (together, “Defendants”) unopposed Demurrer to the First Amended Complaint (“FAC”) is SUSTAINED with leave to amend.
The Court construes Plaintiff’s failure to oppose the demurrer as an abandonment of Plaintiff’s claims or an admission that the demurrer has merit. (See
Looking for case law or statutes not cited here? Search published authorities
Examples: “Why did the court rule this way?” · “What were the procedural grounds?” · “Is appearance required?”
Sup. Ct. (2000) 78 Cal.App.4th 562, 566 [“By failing to argue the contrary, plaintiffs concede this issue”]; Westside Center Associates v. Safeway Stores 23, Inc. (1996) 42 Cal.App.4th 507, 529 [“failure to address the threshold question ... effectively concedes that issue and renders its remaining arguments moot”]; Glendale Redevelopment Agency v. Parks (1993) 18 Cal.App.4th 1409, 1424 [issue is impliedly conceded by failing to address it].)
Plaintiff attempted to file a Second Amended Complaint which was rejected; Plaintiff believes she can amend the complaint to cure the deficiencies identified by the demurrer. The Court will therefore grant Plaintiff one final opportunity to amend the pleading. Plaintiff shall file her Second Amended Complaint within 20 days of this order.
Defendant to give notice.