Dela Cruz vs. Factura

# Case Name Tentative 3 25-01485306 1) Motion to Compel Deposition (Oral or Written) 2) Motion to Compel Response to Requests for Admissions Creditors Adjustment Bureau, Inc. vs. The Bisogno Company 4 24-01416984 Motion to Set Aside/Vacate Default and Judgment

Dela Cruz vs. Factura Defendant Jennie Factura’s Motion to Set Aside Default and Vacate Default Judgment is DENIED.

Defendant moves for an order setting aside the default judgment entered against her pursuant to Code of Civil Procedure section 473, subdivision (b) on the grounds of inadvertence, mistake, and/or excusable neglect, Code of Civil Procedure section 473.5, and the Court’s equitable powers.

Code of Civil Procedure section 473

Code of Civil Procedure section 473, subdivision (b) permits the court to “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.”

A motion seeking relief under section 473, subdivision (b) must be brought within 6 months “after the judgment, dismissal order, or proceeding was taken.” (Code Civ. Proc., § 473, subd. (b).)

While “[a] default and default judgment may be set aside pursuant to the provisions of Code of Civil Procedure, section 473, subdivision (b), [] the motion must be made within six months after entry of the default.” (Manson, Iver & York v. Black (2009) 176 Cal.App.4th 36, 42.)

The Court entered default against Defendant on 10/9/24. (ROA 20.) Defendant’s motion was filed on 11/17/25 and is therefore untimely.

Code of Civil Procedure section 473.5

Defendant also moves pursuant to Code of Civil Procedure section 473.5.

Section 473.5, subdivision (a) provides, “When service of a summons has not resulted in actual notice to a party in time to defend the action and a default or a default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action.”

“A defendant seeking to set aside a default or default judgment under section 473.5 must show, by affidavit, that his or her lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect.” (Rios v. Singh (2021) 65 Cal.App.5th 871, 885 [citing Code Civ. Proc., § 473.5, subd. (b).])

Plaintiff’s complaint was filed on 7/31/24. (ROA 2.) Plaintiff filed a proof of service on 9/16/24 reflecting substitute service on Defendant on 8/24/24. (ROA 9.)

Defendant states in her declaration, “After learning that there was a Complaint against me, I went to the Office of Atty. Jack Richard Thomas (Atty. Thomas) and asked for legal advice sometime in September 2024.” (Factura Decl., ¶ 1.)

As Defendant acknowledges she was aware of the complaint against her and sought counsel shortly thereafter, Defendant does not demonstrate she lacked actual notice in time to defend the action.

Accordingly, the Court DENIES Defendant’s motion to set aside the default and vacate default judgment under both Code of Civil Procedure section 473 and 473.5.

Equitable relief

Defendant also moves for relief under the Court’s equitable powers.

“The court’s ability to grant relief under its inherent power is narrower than its ability to grant relief under section 473, subdivision (b). This is especially true after a default judgment has been entered. ‘A party who seeks to set aside a default judgment pursuant to the court’s equity power must make a substantially stronger showing of the excusable nature of his or her neglect than is necessary to obtain relief under . . . section 473.’ As our Supreme Court has explained, ‘[w]hen a default judgment has been obtained, equitable relief may be given only in exceptional circumstances. ‘[W]hen relief under section 473 is available, there is a strong public policy in favor of granting relief and allowing the requesting party his or her day in court.

Beyond this period there is a strong public policy in favor of the finality of judgments and only in exceptional circumstances should relief be granted.’” (Kramer v. Traditional Escrow, Inc. (2020) 56 Cal.App.5th 13, 29 [cleaned up, emphasis in original].)

“A party seeking relief under the court’s equitable powers must satisfy the elements of a ‘stringent three-pronged test’: (1) a satisfactory excuse for not presenting a defense, (2) a meritorious defense, and (3) diligence in seeking to set aside the default.” (Ibid.)

Defendant was served on 8/24/24. (ROA 9.) Defendant contacted Plaintiff’s counsel’s office on 9/17/24 to request an extension from the 10/8/24 deadline to respond. (Czech Decl., ¶ 2.) Defendant stated she was still determining whether she would hire counsel or respond in pro per. (Czech Decl., ¶ 2.) Plaintiff did not grant Defendant’s request for an extension.

Defendant states that after learning of the complaint, she contained the office of attorney Jack Richard Thomas and asked for legal advice

“sometime in September 2024.” (Factura Decl., ¶ 1.) Defendant states “there was already an agreement that Atty. Thomas will represent me in this case,” (Factura Decl., ¶ 2.) Though it is unclear exactly when Thomas was retained, it was presumably after Defendant contacted Plaintiff’s counsel’s office on 9/17/24 stating it was yet undetermined whether she would retain counsel or proceed pro per.

Defendant states “Sometime in October 2024, I was informed that the Atty. Thomas passed away on September 24, 2024.” (Factura Decl., ¶ 3.) (The declaration of John Almarez states, “Sometime in October 24, 2024, I was the one who informed Defendant Factura that Atty. Thomas had recently passed away . . . .” (Almarez Decl., ¶ 5.) This is preceded by a statement that “On September 24, 2024, I was informed by the family of Atty. Thomas that he suddenly passed away.” (Almarez Decl., ¶ 4.) Thus, it is unclear whether the date of the 24th was unintentionally repeated as Defendant only states she was informed “sometime in October 2024.)

Defendant further states, “Despite Diligent efforts, I was not able to find a representation to replace now deceased Atty. Thomas.” (Factura Decl., ¶ 4.) Defendant does not state what efforts were made to obtain new counsel, when they were made, why they were unsuccessful, or that, for example, a request for additional time to respond to the responsive pleading to obtain new counsel was denied. To the extent Defendant was aware of Mr. Thomas having passed away prior to the deadline for the responsive pleading, Defendant does not sufficiently demonstrate “a satisfactory excuse for not presenting a defense.”

Additionally, Defendant was served by mail with the request for entry of default on 10/9/24. (ROA 20.) Defendant also states she attended an order to show cause hearing on 3/27/25 where she was informed she was already defaulted and then subsequently received the entry of default judgment on 6/5/25. (Factura Decl., ¶¶ 6, 7.)

Thus, though Defendant was aware of the request for entry of default by Plaintiff in October 2024 and informed by the Court that she was defaulted on 3/27/25, Defendant did not obtain new counsel until August 2025 (Factura Decl., ¶ 8) and did not file the instant motion until 11/17/25. Again, Defendant does not provide further information regarding her efforts to obtain counsel after becoming aware of the request for entry of default and subsequent default. Accordingly, the Court finds Defendant has not demonstrated diligence in seeking to set aside the default.

Finally, Defendant states only that the proposed answer attached to the motion “presented meritorious defenses that would avoid any claim by Dela Cruz.” (Mtn. at 5:5-6.) Thus, the Court finds Defendant has not sufficiently satisfied the “meritorious defense” prong for equitable relief.

Accordingly, the Court DENIES Defendant’s motion to set aside the default and vacate default judgment on equitable grounds.