THE JOHN STEWART COMPANY VS. CHRISTOPHER J. RUSSELL

Russell cites three statutory provisions as authorizing relief in this case. The first is subdivision (d) of Code of Civil Procedure section 473, which provides in relevant part that “[t]he court ... may, on motion of either party after notice to the other party, set aside any void judgment or order.” (Code Civ. Proc., § 473, subd. (d).) This provision only applies to judgments or orders that are void and not merely voidable.

May 29, 2026 Law and Motion Calendar PAGE 15 HONORABLE MICHAEL L. MAU, Department 20 ________________________________________________________________________ (Lee v. An (2008) 168 Cal.App.4th 558, 566.)

Russell argues that the default judgment is void based on his assertion that, at some unspecified point in time after he filed the Answer and was served written discovery, he “did not receive notice of later hearings, trial dates, default, proceedings, judgment papers, or notice of entry of judgment.” (Apr. 27, 2026 Notice of Motion and Motion, p. 6, et seq. (“Russell Decl.”), ¶ 7.) But, even were it assumed that no notice of any hearing after filing of the answer was ever served, the judgment would be voidable and not void. (See, Johnson v. E-Z Ins. Brokerage, Inc. (2009) 175 Cal.App.4th 86, 98–99 [order imposing terminating sanctions on ex parte basis was voidable not void].)

Accordingly, this statutory provision does not provide a basis for relief.

B. Relief Under Code Civ. Proc. § 473.5

The second provision on which Russell relies is Code of Civil Procedure section 473.5, which provides that “[w]hen 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 the party in the action, the party may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action.” (Code Civ. Proc., § 473.5, subd. (a).)

The statute, by its plain text, does not apply to all defaults but to those entered due to a party’s failure to appear and file a timely response after service of summons. In this case, Russell did receive notice by service of process and filed an answer.

Accordingly, this statutory provision does not provide a basis for relief.

C. Relief Under Code Civ. Proc. § 473, Subd. (b)

The third and final provision on which Russell relies is subdivision (b) of Code of Civil Procedure section 473, which provides in relevant part that “[t]he court may, upon any terms as may be just, relieve a party ... from a judgment, dismissal, order, or other proceeding taken against the party through the party’s mistake, inadvertence, surprise, or excusable neglect.” (Code Civ. Proc., § 473, subd. (b).)

To be entitled to relief, the moving party must show that the act or omission resulting in the default is one that a reasonably prudent person might have committed under similar circumstances. (Renteria v. Juvenile Justice, Dept. of Corrections & Rehabilitation (2006) 135 Cal.App.4th 903, 910.) This showing must be made by a preponderance of the evidence, and a court has no discretion to grant relief if it is not made. (Hopkins & Carley v. Gens (2011) 200 Cal.App.4th 1401, 1410.)

In addition, the party must show that the motion for relief was filed “within a reasonable time, in no case exceeding six months” after entry of the order taken against them. (Code Civ. Proc., § 473, subd. (b); Kramer v. Traditional Escrow, Inc. (2020) 56 Cal.App.5th 13, 28.) Whether a motion for relief was filed within a reasonable time depends on the circumstances of the case, but a grant of relief requires a showing of the moving party’s diligence in seeking relief upon discovery of the order. (Stafford v. Mach (1998) 64 Cal.App.4th 1174, 1181.)

The order that must be the focus of the application of this provision is the February 13, 2026 minute order imposing terminating sanctions. Even were the default judgment and default set aside, the Answer would remain stricken and a default and default judgment would be re-entered as a matter of course.

May 29, 2026 Law and Motion Calendar

HONORABLE MICHAEL L. MAU, Department 20 ________________________________________________________________________

As far as timeliness is concerned, it is potentially arguable that Russell was not served notice of entry of the February 25, 2026 formal order, as the proof of service of notice of entry of the minute order is defective. (Feb. 23, 2026 Proof of Service, p. 2; see Code Civ. Proc., § 1013a, subds. (1)–(3) [proof must state envelope was sealed].) Accordingly, based on the current absence of a valid proof of service of said order, this motion—otherwise filed within six months of entry of the minute order—was brought diligently and is therefore timely.

However, there is an insufficient showing of excusable surprise due to lack of notice. The evidence presented does not adequately demonstrate that Russell’s failure to oppose the motion for terminating sanctions was the result of excusable neglect. The declaration offered in support of this motion for relief does not state when he stopped receiving notices served on him by the parties and the Court. (See Russell Decl., passim.) Nor does it expressly state that he did not receive notice of the motion for terminating sanctions in particular. (See id., at ¶¶ 7–8 [only specifying that the next “meaningful” notice he received was the writ of possession].) The Russell declaration does not provide any plausible explanation for his claimed lack of notice.

More importantly, the moving party bears the burden of demonstrating that the alleged surprise could not have been guarded against by ordinary prudence. (Credit Managers Assn. v. National Independent Business Alliance (1984) 162 Cal.App.3d 1166, 1173.) Even were it assumed Russell did not have actual notice of the motion for terminating sanctions—the declaration does not show that Russell lacked constructive notice or that his failure to read the notice of motion served on him was caused by something other than his neglect.

That is, the facts set forth in the declaration are consistent with, for example, a refusal to check the mail such that one would have constructive notice though not actual notice. The Court must assess the credibility of the evidence presented on a motion for relief. (See Shamblin v. Brattain (1988) 44 Cal.3d 474, 479.) In light of the fact that service of prior notices by mail resulted in notice to Russell (see Dec. 8, 2025 Proof of Service), as evidenced by Russell’s previous attempts to file other motions for relief, the absence of any explanation or detail as to the now purported absence of notice is fatal.

The Court also notes that on the Motion to Compel Interrogatories, etc. on December 5, 2025, Defendant failed to appear. See, Minute Order filed 12/5/2025. On the Motion for Terminating Sanctions on February 13, 2026, Defendant again failed to appear. See, Minute Order filed 2/13/2026. Defendant claims that “the next meaningful notice I received was the writ and Notice to Vacate....” Russell Decl., ¶ 8. The Writ of Possession states it was personally served by Detective Tuipulotu on March 10, 2026, and that Plaintiff was placed in peaceful possession on March 26, 2026. See, Writ of Possession, pg.

5. This was a period of some sixteen calendar days. During those sixteen calendar days, this Court had multiple Ex Parte calendars whereby Defendant had multiple opportunities, with proper notice to be given, to claim the very surprise that he is now claiming after the fact. Not a single Ex Parte was filed by Defendant during this time period.

Generally, because public policy favors resolution of cases on the merits, the showing of excusability for relief can be relatively easy to make when there is no prejudice to the other party. However, here there is substantial prejudice to both JS Co. and to third parties: JS Co. presents evidence showing that the premises at issue in this case have already been leased to a new tenant. (May 7, 2026 Declaration of Mercedes Gavin, ¶ 2.) The default judgment for possession cannot be lightly set aside due to the adverse impact on the potentially innocent third person. Accordingly, this statutory provision likewise does not provide a basis for relief.

May 29, 2026 Law and Motion Calendar PAGE 17 HONORABLE MICHAEL L. MAU, Department 20 ________________________________________________________________________ The motion is thus DENIED.

Any party who contests a tentative ruling must email Dept20@sanmateocourt.org with a copy to all other parties by 4:00 p.m. stating, without argument, the portion(s) of the tentative ruling that the party contests.

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, Counsel for the prevailing party shall prepare for the Court’s signature a written order consistent with the Court’s ruling pursuant to CRC Rule 3.1312 and provide written notice of the ruling to all parties who have appeared in the action, as required by law and by the CRC. Please note that Local Rule 3.403(b)(iv) states in part “prevailing party on a tentative ruling is required to prepare a proposed order REPEATING VERBATIM the tentative ruling” (emphasis added). The order should be filed or e-filed only, do not email or mail a hard copy to the Court.