Motion to Set Aside Default, Default Judgment and Lockout
TENTATIVE RULING FOR May 28, 2026 Department S22 – Judge David Driscoll This court follows California Rules of Court, rule 3.1308(b) for tentative rulings. (See San Bernardino Superior Court Local Emergency Rule 8.) Tentative rulings for each law & motion will be posted on the internet (https://www.sb-court.org) by 3:00 p.m. on the court day immediately before the hearing.
You may appear in person at the hearing although remote appearance by CourtCall is preferred during the Pandemic. (See www.sb-court.org/general-information/remote-access). If you do not have Internet access or if you experience difficulty with the posted tentative ruling, you may obtain the tentative ruling by calling the department (S-22) at (909) 521-3529 or the Administrative Assistant (909) 708-8756, who prepared the ruling.
If you (or both parties) wish to submit on the Tentative, notify the other party and call the department by 4:00 pm the day before and your appearance may be excused unless the Court orders you to appear.
You must appear at the hearing if you are so directed by the court in the tentative ruling. Be prepared to address those issues set forth by the court in its ruling.
UNLESS OTHERWISE NOTED, THE PREVAILING PARTY IS TO GIVE NOTICE OF THE RULING. ____________________________________________________________________________
E STREET INVESTMENTS, INC. v. MICHAEL RODRIGUEZ, dba “The Tee Plug”
____________________________________________________________________________
TENTATIVE RULING
This is an unlawful detainer action. On September 8, 2025, Plaintiff E Street Investments, Inc. (“Plaintiff”) initiated this action against defendant Michael Rodriguez (“Rodriguez”) for failure to pay rent. On October 28, 2025, the Summons and Complaint were served by Posting and Certified Mail. On December 10, 2025, Rodriguez filed and served his Answer.
On December 18, 2025, Plaintiff filed its request for entry of default and default judgment. On January 23, 2026, the Court vacated both the request for entry of default and the default judgment. The Court also vacated the Writ of Possession on grounds that it was “issued in error as an answer had been received by the court on 12/10/2025.”
On February 5, 2026, the Court held a trial readiness conference (TRC); Rodriguez failed to appear at the hearing. As a result, the Court set a court trial for February 9th, 2026, and issued an OSC re: striking Rodriguez’s answer for failure to appear at the TRC. On February 9, 2026, the matter came on for court trial. As Rodriguez failed to appear at the court trial, the Court struck Rodriguez’s Answer and the matter proceeded as a default. The Court entered judgment for possession.
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On March 10, 2026, Rodriguez filed and served his Motion to Set Aside Default, Default Judgment and Lockout; the matter was set for hearing on June 17, 2026. On March 13, 2026, Rodriguez filed an Ex Parte Application for Order Shortening Time to Hear his Motion to Set Aside Default and Default
Judgment. On the same day, Plaintiff filed its Opposition to the Ex Parte Application. On March 20, 2026, the Court granted the Ex Parte request and set the matter for hearing on April 16, 2026.
On April 16, 2026, the matter came on for hearing. Per the minute order of the hearing, the “action was set from the defendant's ex parte application to set aside judgment on 3/20/26 in which counsel for defendant was to file a proper noticed motion, however the motion documents were not filed.” The minute order further provides that the “Court will allow defense counsel another opportunity to file their motion [and] reserves the date of 05/28/26 for this motion to be set for hearing. A fully noticed motion is to be filed with opposition and reply due according to code.”
On May 14, 2026, Plaintiff filed its Opposition to the Motion. Rodriguez has not replied.
Under Code of Civil Procedure section 473, subdivision (b), “the court may, upon any terms as may be just, relieve a party ... from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” Relief under Code of Civil Procedure section 473, subdivision (b) is discretionary unless the application is accompanied by an attorney affidavit of fault.
Excusable neglect is the most common ground for obtaining discretionary relief from default. The issue boils down to whether the moving party has shown a reasonable excuse for the default. (See Shapiro v. Clark (2008) 164 Cal. App. 4th 1128, 1140-43.) Excusable neglect is “that neglect which might have been the act of a reasonably prudent person under the same circumstances.” (Alderman v. Jacobs (1954) 128 Cal. App. 2d 273, 276.) “Inadvertence is lack of heedfulness, or attentiveness, inattention, fault from negligence.” (Alderman v. Jacobs, supra, 128 Cal. App. 2d at 276.)
With respect to motions for relief from default, doubtful cases are resolved in favor of granting relief, because the law strongly favors trials and disposition on the merits. (Fasuyi v. Permatex, Inc. (2008) 167 Cal. App. 4th 681, 695-96.) When the party in default promptly seeks relief, and no prejudice to the opposing party will result in setting aside the default, very slight evidence will be required to justify a court in setting aside the default. (Id. at 696.) Application for such relief shall be accompanied by a copy of the answer or other pleading proposed to be filed and must be made “within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (Code of Civ. Proc. § 473(b).)
Analysis
A party seeking relief under section 473, subdivision (b) must file the motion within a reasonable time but not longer than six months after the judgment or dismissal has been entered. This limit is jurisdictional in the sense that the court has no power to grant relief after this time, regardless of whether an attorney affidavit of fault is filed or how reasonable the excuse for the delay. (Davis v. Thayer (1980) 113 Cal.App.3d 892, 901.)
Here, the initial request to enter Rodriguez’s default on December 18, 2025, was not proper as Rodriguez had already filed his Answer. Thereafter, on February 9, 2026, the Court struck Rodriguez’s Answer. Rodriguez then filed his Motion to Set Aside a month later, on March 10, 2026. Thus, the motion is timely.
Regarding any argument that the Motion was not a properly filed and noticed motion, the docket reflects that the Motion was filed and served on March 10, 2026, with an original hearing date of June 17, 2026. The Ex Parte Motion to Shorten Time was filed three days later, on March 13, 2026. When the Ex Parte Motion was granted, the June hearing date was vacated and advanced to April 16, 2026. Based on this
history, it appears Rodriguez has already filed and served a noticed motion to set aside the default and default judgment.
As for the substantive basis for the relief, Rodriguez asserts he has taken affirmative steps to defend against this action, participate in the proceedings, and that he did not abandon the case. Rodriguez argues that based on the initial entry of default, he – as a pro per litigant – was reasonably confused about the procedural posture of the case. This is particularly so since during this time Rodriguez was in communication with Plaintiff’s counsel regarding the tenancy and the issues raised in the Complaint.
Based on these communications, Rodriguez attests that he believed the matter was being addressed and that he did not understand that the case would proceed to a trial. Moreover, Rodriguez asserts that he did not receive meaningful actual notice of the trial date and that he did not understand that a trial would proceed in his absence. Thus, his absence was a result of mistake and excusable neglect. Lastly, Rodriguez argues he has meritorious defenses to the action.
In opposition, Plaintiff argues that Rodriguez has failed to file a noticed motion despite the Court requesting him to do so, and that he has not acted diligently in moving to set aside the default and default judgment. Furthermore, Plaintiff argues that failing to show up to the TRC and court trial does not constitute excusable neglect.
“The law favors judgments based on the merits, not procedural missteps. Our Supreme Court has repeatedly reminded us that in this area doubts must be resolved in favor of relief, with an order denying relief scrutinized more carefully than an order granting it.” (Lasalle v. Vogel (2019) 36 Cal.App.5th 127, 134.) Further, “it is now well-acknowledged that an attorney has an ethical obligation to warn opposing counsel that the attorney is about to take an adversary's default. [Citation.]” (Id. at 135.) Thus, although Rodriguez was a self-represented litigant at the time, a warning does not appear to be any less warranted that the Court intended to strike his Answer. And while the Court did issue an OSC and trial date, it was set only four days after the TRC, lending credence to Rodriguez’s argument that he did not receive meaningful notice of the OSC and trial date.
Based on the evidence submitted in support of the Motion, Rodriguez has met his burden to establish that his failure to attend the TRC and trial was due to inadvertence and/or excusable neglect because he was, prior to missing the TRC, attempting to participate in the matter, was attempting to resolve the issues giving rise to the Complaint, and was reasonably confused about the status of the case given the history of the matter and his communications with opposing counsel. Furthermore, the opposition does not argue that Plaintiff will suffer any appreciable prejudice as a result of the Motion being granted with the contemporaneous setting of trial. In consideration of all the circumstances and given the preference for having civil actions determined on their merits, it is the intent of the court to grant the Motion to Set Aside Default and Default Judgment.
TENTATIVE RULING
Rodriguez’s Motion to Set Aside the Default and Default Judgment is granted, and this civil action is reinstated. This matter is hereby set for a Trial Readiness Conference on June 4, 2026, at 8:30 a.m. and a Court-Trial (2-hour estimate) on June 8, 2026, at 8:30 a.m. The parties are to file their pre-trial documents at the time of the TRC, which includes a Joint Exhibit List, Exhibits, Witness List, and Trial Briefs.