Set Aside Default
May 1, 2026 Dept. 9 Tentative Rulings
6. 25CV3095 SCHOOLS FIRST FEDERAL CREDIT UNION v. MILLER et al Set Aside Default
This is an action to collect a credit card debt. Defendant Brittany Miller requests the Court to set aside a default based on mistake, inadvertence, surprise or excusable neglect pursuant to Code of Civil Procedure § 473(b).
According to the motion and the Declarations of both defendants in support of the motion, both Defendants retained a debt resolution service to assist with this litigation, and the debt resolution service in turn hired a third-party service to draft the Answer to Plaintiffs’ Complaint. The third-party service drafted the Anwer on behalf of Defendant Lucas Miller but did not add Defendant Brittany Miller’s name on the Answer.
Plaintiff filed a request for default as to Brittany Miller on February 19, 2026, and Defendant filed this motion on March 3, 2026. Although she did not include a proposed responsive pleading, she did request the Court to deem her name included with the Answer that was filed on behalf of Lucas Miller on December 3, 2025.
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.
Plaintiff opposes the motion, arguing first that there has been no showing of excusable neglect and that the motion was not brought within a reasonable time, given that the Answer was filed in December, 2025 and Defendant did not file this motion until March, 2026. The motion was filed a few weeks after the default was entered, which is well within the deadline set forth in the statute.
Plaintiff further argues that Defendant has not provided evidence of a meritorious defense. The statute requires that a responsive pleading be included with the motion, but does not require a determination of relative strength of the parties’ substantive arguments. Plaintiff cites a 1969 case, Transit Ads, Inc. v. Tanner Motor Livery, Ltd., 270 Cal. App. 2d 275 (1969)
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May 1, 2026 Dept. 9 Tentative Rulings
Cal.App. 545, 554, 200 P. 657) unless it is made to appear that the defense is sham or frivolous.” Skolsky v. Magna Distribution Corp., 254 Cal. App. 2d 246, 252 (Ct. App. 1967) (Citations omitted.)
In this case, the Answer filed by Lucas Miller questions the lack of evidence of a contract, the lack of a chain of assignment showing plaintiff’s standing to collect the alleged debt, failure to comply with statutory prerequisites to debt collection and failure to mitigate damages. The moving party requests her name be added to the Answer in accordance with Defendants’ intentions. That is sufficient to meet the requirements of the statute that the motion propose a responsive pleading.
[B]ecause the law strongly favors trial and disposition on the merits, any doubts in applying section 473 must be resolved in favor of the party seeking relief from default (Waite v. Southern Pacific Co. (1923) 192 Cal. 467, 470-471 [221 P. 204]; Carli v. Superior Court (1984) 152 Cal.App.3d 1095, 1099 [199 Cal.Rptr. 583] [in the context of deemed admissions § 473 should be applied liberally “so cases can be tried on the merits”]; Flores v. Board of Supervisors, supra, 13 Cal.App.3d at p. 483.) . . . A motion seeking such relief lies within the sound discretion of the trial court, and the trial court's decision will not be overturned absent an abuse of discretion. (Weitz v. Yankosky (1966) 63 Cal.2d 849, 854 [48 Cal.Rptr. 620, 409 P.2d 700]; Martin v. Cook (1977) 68 Cal.App.3d 799, 807 [137 Cal.Rptr. 434].)
The Court finds that the motion for relief from default meets the statutory requirements of Code of Civil Procedure § 473(b). TENTATIVE RULING #6: THE DEFAULT IS VACATED. DEFENDANT SHALL FILE AN AMENDED ANSWER THAT INCLUDES THE NAMES OF BOTH DEFENDANTS WITHIN TEN DAYS OF SERVICE OF THIS ORDER. NO HEARING ON THIS MATTER WILL BE HELD UNLESS A REQUEST FOR ORAL ARGUMENT IS TRANSMITTED ELECTRONICALLY THROUGH THE COURT’S WEBSITE OR BY TELEPHONE TO THE COURT AT (530) 621-6551 BY 4:00 P.M. ON THE DAY THE TENTATIVE RULING IS ISSUED.
CAL. RULE CT. 3.1308; LOCAL RULE 8.05.07; SEE ALSO LEWIS V. SUPERIOR COURT, 19 CAL.4TH 1232, 1247 (1999). NOTICE TO ALL PARTIES OF A REQUEST FOR ORAL ARGUMENT AND THE GROUNDS UPON WHICH ARGUMENT IS BEING REQUESTED MUST BE MADE BY TELEPHONE OR IN PERSON BY 4:00 P.M. ON THE DAY THE TENTATIVE RULING IS ISSUED. CAL. RULE CT. 3.1308; EL DORADO COUNTY LOCAL RULE 8.05.07. PROOF OF SERVICE OF SAID NOTICE MUST BE FILED PRIOR TO OR AT THE HEARING.
May 1, 2026 Dept. 9 Tentative Rulings
LONG CAUSE HEARINGS MUST BE REQUESTED BY 4:00 P.M. ON THE DAY THE TENTATIVE RULING IS ISSUED AND THE PARTIES ARE TO PROVIDE THE COURT WITH THREE MUTUALLY AGREEABLE DATES ON FRIDAY AFTERNOONS AT 2:30 P.M. LONG CAUSE ORAL ARGUMENT REQUESTS WILL BE SET FOR HEARING ON ONE OF THE THREE MUTUALLY AGREEABLE DATES ON FRIDAY AFTERNOONS AT 2:30 P.M. THE COURT WILL ADVISE THE PARTIES OF THE LONG CAUSE HEARING DATE AND TIME BY 5:00 P.M. ON THE DAY THE TENTATIVE RULING IS ISSUED. PARTIES MAY PERSONALLY APPEAR AT THE HEARING.
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