Defendant Chavez Calderon’s Motion to Set Aside Default
LAW AND MOTION TENTATIVE RULINGS DATE: JUNE 15, 2026 TIME: 8:30 A.M.
The Court does not find evidence of actions or tactics made in bad faith on the part of respondent or its counsel. The Court does not find that respondent’s demurrer was frivolous, particularly since this Court sustained the demurrer with leave to amend, finding merit to respondent’s position. Therefore, there is no basis to levy sanctions against respondent or its counsel. Procedurally, the request for sanctions is also deficient because respondent asserts Gibbs failed to abide by the 21-day safe harbor requirement pursuant to Code of Civil Procedure section 128.5, subdivision (f)(1)(B): “[i]f the alleged action or tactic is the making or opposing of a written motion or the filing and service of a complaint, cross-complaint, answer, or other responsive pleading that can be withdrawn or appropriately corrected, a notice of motion shall be served as provided in Section 1010, but shall not be filed with or presented to the court, unless 21 days after service of the motion or any other period as the court may prescribe, the challenged action or tactic is not withdrawn or appropriately corrected.”
Therefore, the motion for sanctions is denied.
No. 24CV03566
CROWN ASSET MANAGEMENT, LLC v. CHAVEZ
(UNOPPOSED) DEFENDANT CHAVEZ CALDERON’S MOTION TO SET ASIDE DEFAULT
The motion is denied. Defendant’s motion fails to establish mistake, inadvertence, surprise or excusable neglect and he failed to serve it on plaintiff.
I. BACKGROUND
Plaintiff Crown Asset Management, LLC obtained a default judgment against debtor Samuel Chavez, who now moves to set aside the judgment based on Code of Civil Procedure section 473, subdivision (b).
Timeline:
12/18/24 Plaintiff filed a limited jurisdiction collections complaint for unpaid credit card charges of $1,541.22
1/30/25 Defendant substitute served by registered process server
11/7/25 Default judgment entered by the clerk
LAW AND MOTION TENTATIVE RULINGS DATE: JUNE 15, 2026 TIME: 8:30 A.M.
5/4/26 Defendant filed this motion asserting he was not served as described in the proof of service of summons; he states he does not know who Oscar Chavez is (service declaration states that person identified himself as defendant’s brother)
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Plaintiff did not file an opposition, likely because defendant did not serve it (there is no proof of service included in the motion or filed later).
II. DISCUSSION
Defendants’ motion is based on Code of Civil Procedure section 473, subdivision (b), mistake, inadvertence, surprise or excusable neglect. Defendant states he was not served and does not know who Oscar Chavez is.
As defendant is pro per, the mandatory relief provision of section 473, subdivision (b) does not apply and the issue is whether the discretionary application of the statute is appropriate. Code of Civil procedure section 473, subdivision (b) provides the court with discretion to grant relief based upon a showing of “mistake, inadvertence, surprise, or excusable neglect.” The party moving for relief must show specific facts demonstrating that one of these conditions was met. (Hopkins & Carley v. Gens (2011) 200 Cal.App.4th 981, 989.)
“The law favors judgment on the merits. Thus, on a motion or relief from default, ‘doubts must be resolved in favor of relief, with an order denying relief scrutinized on appeal more carefully than granting it.’” (Lasalle v. Vogel (2019) 36 Cal.5th 127, 134.) Relief is proper under section 473, subdivision (b) where defendant (or their attorney) was mistaken as to some fact material to the defendant’s duty to respond. “[W]here the defendant, with full knowledge of the proceedings, and without being misled by the opposing party or counsel, fails to take action to protect his interests until after the default, it is an abuse of discretion to set the default aside. [Cit. omitted.]
Nor does the trial court have the legal power to set aside the default simply because the defendant did not realize the legal effect of failing to file an answer.” (Yarbrough v. Yarbrough (1956) 144 Cal.App.2d 610, 615.) Defendant’s papers do not establish mistake, inadvertence, surprise or excusable neglect. Pursuant to Evidence Code section 647, the process server’s return is presumed valid. Based on the presumption, defendant was substitute served, meaning the summons was left with the person who self-identified as defendant’s brother and it was mailed.
Defendant does not address if he received any mailed summons but he also fails to provide any specific facts demonstrating mistake, inadvertence, surprise or excusable neglect.