Bent vs. Miller

Defendant Kyle Miller’s Motion to Set Aside Entry of Default and Granting Defendant Leave to Defendant Leave to Defend and File Responsive Pleading is granted.

The Court finds Defendant should be granted discretionary relief under CCP section 473(b). The statute provides, in relevant part, that: “The 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.” (Code Civ. Proc., § 473, subd. (b).) If a party moves promptly for relief from default, or if the granting of the relief from default will not prejudice the opposing party (other than losing the advantage of the default), “very slight evidence is required to justify a trial court’s order setting aside a default.” (Iott v.

Franklin (1988) 206 Cal.App.3d 521, 526, citing Shamblin v. Brattain (1988) 44 Cal.3d 474, 478.) The statute is to be “liberally construed” as “sound policy favors the determination of actions on their merits.” Any doubts “must be resolved in favor of the party seeking relief from default.” (Shapell Socal Rental Properties, LLC v. Chico’s FAS, Inc. (2022) 85 Cal.App.5th 198, 212.)

A motion for discretionary relief under section 473(b) must satisfy three requirements. First, the motion must be made “within a reasonable time” and “in no case exceeding six months” after the entry of default (unless relief is sought on equitable grounds). (Code of Civ. Proc. § 473, subd. (b).) Second, the motion “shall be accompanied” by a copy of the answer or other proposed pleading to be filed, “otherwise the application shall not be granted.” (Code of Civ. Proc. § 473, subd. (b).) Lastly, the motion must show that default was taken as a result of mistake, inadvertence, surprise, or excusable neglect.

The Court finds all three requirements have been satisfied, here. The motion was timely made within less than a month from entry of default and is accompanied by a copy of the proposed answer. The motion is supported by a declaration from Defendant explaining that default was entered as a result of his lack of understanding that he was properly served with process.