Motion to Set Aside Default
The court of appeal found that the trial court did not err in giving such a jury instruction because: “the following facts provided sufficient circumstantial evidence of willful suppression for the issue to go to the jury: (1) Although they resigned within a few months of each other, Fellows's personnel file could not be located but Ms. Bihun's file was found; (2) the disappearance of Fellows's file was covered up by defendant; (3) defendant's rules require maintenance of resigned employees' personnel files if a matter is in litigation; (4) it was reasonably probable Fellow's performance evaluations and any complaints of sexual harassment would be in his personnel file.
Considering the evidence in the light most favorable to respondent (County of Contra Costa v. Nulty, supra, 237 Cal.App.2d at p. 594), we find no error in giving the jury an instruction on willful suppression of evidence.” (Id. at 994). In Bihun, therefore, the trial court gave the most lenient jury instruction, but only after sufficient foundational circumstantial evidence was admitted for the issue to go to the jury.
Unlike Bihun, however, this case is not yet before a jury and sufficient foundational evidence has not been admitted. Rather, Defendant seeks a determinative finding of willful suppression and a determinative adverse instruction for the court, not the jury, to decide. The court finds that, at this stage of the proceedings, with the evidence before the court, the evidentiary sanctions that Defendant seeks is inappropriate
For these reasons, the motion is denied without prejudice to Defendant seeking a jury instruction at trial, but only if, and only after sufficient foundational evidence of spoliation has been admitted that warrants the issue going to the jury.
Plaintiff to give notice.
10 Mid-Century TENTATIVE RULING: Insurance Company vs. Motion to Set Aside Default Kannan Defendants Gutha Kannan and Saini Kannan (the “Kannans”) move to set aside the default entered against them. For the following reasons, the motion is GRANTED.
Code Civ. Proc. § 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
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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. . . . Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect.
The court shall, whenever relief is granted based on an attorney's affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties.”
Code Civ. Proc. § 473(b) permits a court to grant relief from a judgment, dismissal, order or other proceeding taken against a party on the grounds of “mistake, inadvertence, surprise or excusable neglect.” Code Civ. Proc. § 473(b) permits a court to grant two types of relief. (Leader v. Health Industries of Am., Inc., 89 Cal. App. 4th 603, 615 (2001).) A court may grant discretionary relief upon the moving party’s showing of mistake, inadvertence, surprise or excusable neglect. (Id. at 615-616.) A court must grant mandatory relief upon a showing by an attorney declaration of mistake, inadvertence, surprise or neglect. (Id. at 616.)
A motion seeking relief under Section 473(b) must be brought within 6 months of entry of the judgment. (Civ. Proc. Code § 473(b); Jimenez v. Chavez (2023) 97 Cal.App.5th 50, 54 [“We conclude that the six-month limitations period of the mandatory and discretionary relief provisions of section 473(b) is either 182 days or six calendar months, whichever period is longer.”].)
On November 26, 2025, the Court entered Defendants’ default. Defendants filed this motion on January 9, 2026. Thus, the motion is timely.
Merits
The Kannans seek discretionary relief based on their claimed mistake, inadvertence, and excusable neglect. The Kannans were served with the summons and Complaint in August 2025 and tried to find a lawyer over the ensuing months. (Declaration of Gutha Kannan (“Gutha Dec.”), ¶¶ 5-10; Declaration of Saina Kannan (“Saina Dec.”) ¶¶ 5-10.) The Kannans retained their counsel in November 2025, the same month in which their default was entered. (Gutha Dec. at ¶¶ 10- 11; Saina Dec. at ¶¶ 10-11.)
Plaintiffs’ counsel evidently indicated he would stipulate to setting aside the default but on the condition that the Kannans not file a Cross-Complaint.
The Kannans have made a sufficient showing of inadvertence to warrant setting aside the default. While they should have responded to the Complaint earlier, they experienced difficulty in retaining an attorney.
Plaintiffs Mid-Century Insurance Company and Truck Insurance Exchange contend that the proposed Cross-Complaint lacks merit and they seek an order prohibiting the Kannans from filing the same. The Court declines to do so. If Plaintiffs want to challenge a pleading, the Code of Civil Procedure provides several means to do so.
The Kannans shall file their responsive pleading(s) within 10 days of this ruling.
The Kannans shall give notice of this ruling.
11 Romero vs. TENTATIVE RULING: Krieger Motion for Leave to Amend
Plaintiff Juan Pablo Romero moves for leave to file a First Amended Complaint. For the following reasons, the unopposed motion is GRANTED.
Statement of Law
The Court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon