Jeffery Scott Stephens vs. Sutter Valley Hospitals

34-2020-00289599-CU-PO-GDS: Jeffery Scott Stephens vs. Sutter Valley Hospitals 01/28/2025 Hearing on Motion to Set Aside/Vacate Default (CCP 473.5) in Department 53

Tentative Ruling

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TENTATIVE RULING: Cross-defendant American River Caulking, Inc.’s (“ARC”) motion to set aside entry of default is ruled upon as follows.

The opposition papers were not timely filed or served at least nine (9) court days before the hearing, given that 1/20/2025 was a court holiday but these opposition papers were nevertheless considered in the Court’s discretion.

Factual Background

This is a personal injury action. Plaintiff Stephens has sued various defendants, several

34-2020-00289599-CU-PO-GDS: Jeffery Scott Stephens vs. Sutter Valley Hospitals 01/28/2025 Hearing on Motion to Set Aside/Vacate Default (CCP 473.5) in Department 53

of whom filed a cross-complaint against ARC on 6/8/2023. On 7/10/2023, proof of service of the cross-complaint against ARC was filed, stating that service occurred on 6/22/2023. On 9/6/2023, a default was entered against ARC.

More than a year later, ARC filed on 12/31/2024 the present motion to set aside the default entered on 9/6/2023, seeking relief pursuant to Code of Civil Procedure §473(b) and §473.5 on the ground the default was entered due to mistake and/or excusable neglect. The sole declaration filed in support of this motion is from ARC’s current attorney and it includes copies of the complaint, the cross-complaint and the 7/10/2023 proof of service of same, the 9/6/2023 request for entry of default and an email exchange with counsel for cross-defendants.

Cross-defendants oppose, arguing that the present motion is procedurally and substantively deficient for several reasons.

In reply, ARC cites the public policy favoring trial on the merits; insists it is ready and willing to participate in this litigation; and has attached its proposed answer to the declaration filed with the reply. The Gamero Declaration in reply does include a copy of its proposed answer to the cross-complaint as well as a proposed stipulation to continue trial.

Trial is currently set for 5/13/2025.

Discussion

A. Code of Civil Procedure §473(b) provides in pertinent part:

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. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken. (Underline added for emphasis.)

The opposition correctly points out that the present motion by ARC does not include a copy of the answer or other pleading which ARC proposed to file if relief is granted. The express language of §473(b) mandates denial of relief where, as here, a copy of the answer or other pleading proposed to be filed is not included with the moving papers.

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2020-00289599-CU-PO-GDS: Jeffery Scott Stephens vs. Sutter Valley Hospitals 01/28/2025 Hearing on Motion to Set Aside/Vacate Default (CCP 473.5) in Department 53

The opposition also correctly argues that the present motion by ARC, filed on 12/31/2024, was filed far more than six months after the default was entered against ARC on 9/6/2023. Notably, neither the moving nor reply papers appear to address this six-month deadline for seeking relief under §473(b).

Finally, while the Notice of Motion asserts that the default against ARC was due to mistake and/or excusable neglect, the sole declaration filed with the moving papers fails to demonstrate the existence of any mistake, excusable neglect, inadvertence and/or surprise. The same is also true for the declaration filed with the reply, which does not address the requirement of some mistake, excusable neglect, inadvertence and/or surprise.

For all these reasons, this Court is currently unable to grant relief pursuant to §473(b) based on the moving papers filed on 12/31/2024.

B. Code of Civil Procedure §473.5(a) provides in pertinent part:

When service of a summons has not resulted in actual notice to a party in time to defend the action and a default or 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. The notice of motion shall be served and filed within a reasonable time, but in no event exceeding the earlier of: (i) two years after entry of a default judgment against him or her; or (ii) 180 days after service on him or her of a written notice that the default or default judgment has been entered. (Underline added for emphasis.)

This Court is unable to grant ARC relief under this provision either since the moving declaration fails to provide any evidence tending to show that the service of the crosscomplaint on 6/22/2023 did not result in “actual notice” to ARC in time to defend. Instead, the Gamero Declaration filed with the moving papers merely avers that her firm was retained in November 2024 and opposing counsel declined to stipulate to set aside the default, with no explanation as to why ARC did not timely respond to the crosscomplaint following its service on 6/22/2023. The initial Gamero declaration fails to establish that the present motion filed on 12/31/2024 was “filed within a reasonable time” and/or with 180 days after service of notice of entry of default on 9/6/2023. The Gamero declaration filed with the reply does not address either of these prerequisites for relief under §473.5.

For these reasons, this Court is also unable to grant relief pursuant to §473.5.

Disposition

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2020-00289599-CU-PO-GDS: Jeffery Scott Stephens vs. Sutter Valley Hospitals 01/28/2025 Hearing on Motion to Set Aside/Vacate Default (CCP 473.5) in Department 53

For the reasons explained above, cross-defendant ARC’s motion to set aside the default entered on 9/6/2023 is DENIED without prejudice.

This minute order is effective immediately. No formal order or other notice is required. (Code Civ. Proc. §1019.5; CRC Rule 3.1312.)