Motion to set aside default and default judgment
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN BERNARDINO
LOBEL FINANCIAL CORP., Case No.: CIVSB2504590 Plaintiff, [TENTATIVE] ORDER DENYING MOTION TO SET ASIDE v. DEFAULT AND DEFAULT JUDGMENT FILED BY VIVIANA CHAVEZ, DEFENDANT VIVIANA CHAVEZ Defendant.
I. INTRODUCTION
This is a limited civil collection action. On March 7, 2025, Plaintiff Lobel Financial
Corp. filed a Complaint against Defendant Viviana Chavez. Plaintiff alleges the following causes
of action: (1) breach of contract; (2) common count: account stated; and (3) common count: open
book account. Plaintiff’s allegations arise out of Defendant’s purchase of a vehicle under an
agreement that the seller assigned to Plaintiff. Plaintiff seeks damages of $14,071.61.
On April 2, 2025, Plaintiff filed a Proof of Service of Summons in which it states
Defendant was served by substitute service on April 1, 2025, at 5:37 p.m. by delivering the
documents to Cecilla Cardona, sibling and co-resident. Cardona was thereafter described. A
declaration of reasonable diligence is attached to the Proof of Service.
On June 6, 2025, the Court entered Defendant’s default. The Court entered a default
judgment against Defendant in the amount of $20,642.46 on September 15, 2025.
Now before the Court is Defendant’s motion to set aside the default, which was filed on
March 16, 2026. Relief is requested under Code of Civil Procedure section 473, subdivision (b).
Defendant asserts that she did not respond to the Complaint due to mistake, inadvertence,
surprise, or excusable neglect. No proposed pleading is submitted with the motion. Defendant
also did not file a declaration in support of the motion or a proof of service of the motion.
On April 7, 2026, Plaintiff filed an opposition. Plaintiff points out that a proposed
responsive pleading was not submitted with the motion. Plaintiff also argues that the motion is
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not supported by evidence of excusable neglect. After issuing a tentative ruling and holding a
hearing on the motion, the Court now issues its final ruling.
II. WHY THE COURT IS DENYING THE MOTION Under Code of Civil Procedure section 473, subdivision (b), “[t]he 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.” The motion must be made within a reasonable time but in no
case exceeding six months after the default was taken. (Code Civ. Proc., § 473, subd. (b).)
With respect to discretionary relief under section 473, subdivision (b), the six-month time
limit runs from the date of entry of default. (Manson, Iver & York v. Black (2009) 176
Cal.App.4th 36, 42.) “‘The six-month time limit for granting statutory relief is jurisdictional and
the court may not consider a motion for relief made after that period has elapsed.’” (Ibid.) An
application for relief requires filing both a notice of motion and service on the adverse party
within the six-month period. (Arambula v. Union Carbide Corp. (2005) 128 Cal.App.4th 333,
340-41.)
With the entry of Defendant’s default on June 6, 2025, the motion must be denied as
untimely where Defendant’s motion was filed more than six months after the default judgment
was entered. The six-month deadline was December 6, 2025. The motion was filed on March 16,
2026.
In addition, Plaintiff is correct that the motion should be denied because Defendant does
not present any evidence to demonstrate Defendant’s mistake, inadvertence, surprise, or
excusable neglect.
Finally, Plaintiff is correct that with discretionary relief under section 473, subdivision
(b), a copy of the proposed answer, demurrer or other pleading must be attached to the
application for relief, “otherwise the application shall not be granted....” The proposed pleading
requirement is not jurisdictional, and substantial compliance suffices. (Carmel, Ltd. v. Tavoussi
(2009) 175 Cal.App.4th 393, 403 [substantial compliance found where counsel offered proposed
answer at motion hearing rather than serving it with moving papers].) But here, no compliance is
demonstrated.
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III. CONCLUSION
Defendant Viviana Chavez’s motion to set aside default is respectfully DENIED. A
motion seeking relief under Code of Civil Procedure section 473, subdivision (b), must be filed
and served within six months of entry of the default.
IT IS SO ORDERED.
Dated: [TENTATIVE – NOT FINAL] Hon. Joseph B. Widman Judge of the Superior Court