Cross-Defendants’ Motion to Set Aside Default
Demurrer:
a. The Court finds that counsel failed to meet and confer in person, telephonically, or via video conference as required by Code of Civil Procedure section 430.41 and as expressly ordered by the Court in its March 6, 2026 Order.
b. Notwithstanding the failure to properly meet and confer and apparent violation of the Court’s March 6, 2026 Order, the Court will hear the demurrer on its merits.
c. The Court sets an Order to Show Cause why sanctions of up to $1,500 payable to the Court should not be imposed against attorneys Susan B. Rousier and Samuel Che for violating the Court’s March 6, 2026 Order pursuant to Code of Civil Procedure section 177.5. The attorneys are ordered to appear and the OSC is set for June 10, 2026 at 9:00 a.m. in Department 17 and
d. The demurrer is overruled in light of the above decision granting the motion to amend the filing date on the complaint.
Moving party is directed to give notice of ruling.
2. CASE NUMBER CASE NAME TYPE OF HEARING CIVRS2504530 Michael Kaiser v Duarte & Cross-Defendants’ Motion to Set Associates, et al Aside Default Tentative Ruling:
Cross-Defendants’ Evidentiary Objections:
REQUEST SUSTAINED OVERRULED COMMENTS NO. 1 X 2 X 3 X Sustain 5th, 6th and 7th sentences. Balance of paragraph overruled 4 X Sustain 5th, 6th and 7th sentences. Balance of paragraph overruled 5 X 6 X 7 X Sustain 2nd, 4th, and 5th sentences. Balance of paragraph overruled 8 X 9 X 10 X 11 X 12 X
13 X 14 X 15 X 16 X 17 X Sustain 2nd, 4th, and 6th sentences. Balance of paragraph overruled.
The Court hereby strikes and does not consider those statements to which objections have been sustained.
Motion:
The motion is granted. Generally, the law strongly favors trial and disposition on the merits, so any doubts about setting aside a default must be resolved in favor of the party seeking such relief. (Elston v. City of Turlock (1985) 38 Cal.3d 227, 233.) When the defaulting party moves promptly to seek relief and the opponent to such request has or will suffer little prejudice, very slight evidence is required to justify setting aside a default. (Ibid.; Shamblin v. Brattain (1988) 44 Cal.3d 474, 478
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The motion is timely filed and is supported by a declaration from Moving Cross- Defendants’ counsel, Stephen T. Cummings, who states Moving Cross-Defendants’ failure to file a responsive pleading to the Cross-Complaint was due to his mistaken belief that serving a motion for sanctions tolled the time period to respond to the Cross- Complaint. Where an attorney affidavit of fault is filed, there is no requirement that the attorney’s mistake or inadvertence be excusable, i.e., relief must be granted even where the default resulted from inexcusable neglect. (Vaccaro v.
Kaiman (1998) 63 Cal.App.4th 761, 770.) The purpose is to alleviate the hardship on parties who lose their day in court solely to an inexcusable failure to act on the part of their attorneys. (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 257.) Duarte’s argument that the instant Motion should be denied due to an incorrect email address on the proof of service is unpersuasive. James Duarte (Duarte) waived any irregularity in the service by filing the Opposition and arguing the Motion on its merits. (Clark v.
Stabond Corp. (1987) 197 Cal.App.3d 50, 58-59.) As to Duarte’s argument that the Motion fails to attach the proposed responsive pleading, Moving Cross-Defendants argue that the proposed Motion for Sanctions is their responsive pleading. A motion under Code of Civil Procedure section 128.5 may be made as to the frivolous or bad faith filing of a cross-complaint and as such, Moving Cross-Defendants Proposed Motion for Sanctions is a responsive pleading.
The Court declines Duarte’s request to grant the Motion only upon the imposition of certain conditions. There is no showing that these conditions or restrictions serve the interests of justice.
Moving Cross-Defendants’ responsive pleading is directed to be filed within 10 days of the court’s order.
Moving party is directed to give notice of the Court’s ruling.