Motion to Set Aside/Vacate Default and Default Judgment (CCP 473.5)
24CV005410: LINDER vs DALTON, et al. 09/03/2024 Hearing on Motion to Set Aside/Vacate Default and Default Judgment (CCP 473.5) in Department 53
Tentative Ruling
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24CV005410: LINDER vs DALTON, et al. 09/03/2024 Hearing on Motion to Set Aside/Vacate Default and Default Judgment (CCP 473.5) in Department 53
or at the time the proceeding is scheduled if less than 10 days away. Once approved, the clerk will forward the form to the Court Reporters Office and an official reporter will be provided.
TENTATIVE RULING: Defendant Ambrose Daltons motion to set aside default is dropped as moot.
Defendant purports to move to set aside entry of default. He indicates that Plaintiff informed his counsel that Plaintiff drop-boxed a request for entry of default on April 24, 2024, and that the Courts docket shows it was filed on April 25, 2024. Defendant believes that his answer which he submitted to the Court on April 24, 2024, was one day late and requests that the default not be entered and that the answer be accepted.
The Courts file shows that Plaintiffs request for entry of default submitted on April 25, 2024, was not entered and was rejected on July 26, 2024. The rejection indicated that Defendants answer had already been filed. Indeed, the Courts record reflects that Defendants answer was filed on April 24, 2024, the day before Plaintiff filed the request for default.
Given that no default was entered and Defendants answer has been filed, there is nothing for the Court to set aside. The motion is moot.
The Court declines to consider self-represented Plaintiffs untimely opposition filed on August 23, 2024, only six Court days priors to the hearing. Oppositions must be filed and served no later than nine Court days prior to the hearing. (CCP § 1005(b).) In any event, the untimely opposition even acknowledges that Plaintiffs request for default was rejected by the Clerk and was not entered. There is nothing to set aside. To the extent that Plaintiff believes that Defendants answer was filed late, or contains material he believes is false, his remedy is to file a motion to strike. However, the Court cannot, as Plaintiff appears to request, grant affirmative relief requested in an opposition.
The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or other notice is required.