CARTER VS. PRESTA

Defendant Christine Presta moves to set aside the default entered against her on April 8, 2026. Plaintiff Randy Carter opposes the motion. As a preliminary matter, while Plaintiff timely filed the Opposition on May 5, 2026, the Proof of Service fil ed May 7, 2026 reflects service by mail on May 6, 2026. This is untimely service, especially given that the Opposition was only served by mail. CCP § 1005(b). Instead of a substantive Reply, Defendant filed a Notice of Non-opposition. When a document is untimely served, the Court’s general practice is to continue the mat ter to allow the party who did not receive timely notice the opportunity to provide a substantive Reply. However, in this i nstance, the Court is proceeding on the merits as the Court’s ultimate ruling is in favor of Defendant.

Merits. The Complaint in this matter was filed on March 5, 2026, by Pla intiff, in pro per. Proof of Service of Summons was filed on March 10, 2026, reflecting personal service of the Summons on March 6, 2026. Plaintiff requested entry of default on April 8, 2026, and default was entered on the same date. Plaintiff also requested a clerk’s judgment on April 8, 2026. However, the clerk returned it to Plaintiff based on a court judgment being required. Per the declaration of counsel, Defendant attempted to file he r Answer and Cross-Complaint on April 13, 2026, however, both were rejected due to Defendant being in default. Defendant filed the Motion to Set Aside on April 16, 2026.

The court may, upon any terms as may be just, relieve a party or the party’s legal representative from a judgment, dismissal, order, or other proceeding taken against the party through the party’s mistake, inadvertence, surprise, or excusable neglect. Application for t his 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 accom panied by an attorney’s sworn affidavit attesting to the attorney’s mistake, i nadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against the attorney’s client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against the attorney’s client, unless the court finds that the default or dismis sal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect. The court sha ll, whenever relief is 2

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. However, t his section shall not lengthen the time within which an action shall be brought to trial pursuant to Section 583.310. CCP § 473(b).

However, where the court grants relief from a default or default judgment pursuant to this section based upon the affidavit of the defaulting party’s attorney attesting t o the attorney’s mistake, inadvertence, surprise, or neglect, the relief shall not be made condi tional upon the attorney’s payment of compensatory legal fees or costs or monetary penalties imposed by the court or upon compliance with other sanctions ordered by the court. CCP § 473(c)(2).

Defendant moved only under the mandatory provision of CCP § 473(b) and specifically asserted that the delay “was not the fault of Defendant herself, but rather came about as the result of surprise or excusable neglect of counsel in being unable to calendar the correct deadline response date.” Fuson Decl. ¶ 7. Entry of default was discovered by Defendant on April 13, 2026, and the motion was filed just three days later. Because an attorney’s sworn affidavit attesting to the attorney’s surprise or neglect was filed, relief is mandatory. Even if relief were not mandatory, the Court finds that Defendant has established excusable negle ct, has acted diligently since discovering that default was entered, and that setting aside the defa ult is in the interest of justice. The default entered April 8, 2026, is ordered set aside.

Plaintiff requested attorney fees and provided an invoice totaling $5,260 in le gal fees. It is unclear from the invoice what services are being billed and who performed the work. The Court notes that some entries were billed at $150 per hour and some were billed at $250 per hour. A number of the entries appear to be related to the entire case, not just this motion. The Court finds that a reasonable compensatory legal fee for this matter is $1,000.

The motion is GRANTED. The default entered on April 8, 2026, is set aside. Compensatory lega l fees are set at $1,000 and are due within thirty days of today. While Defendant provided a proposed Answer and proposed Cross-Complaint, they are stapled to the Opposition. The Court cannot separate a filed document. Defendant is granted ten days leave to file the Answer and Cross-Complaint. De fendant did not provide a proposed Order as required by Local Rule of Court 5.17(D). However, Plaintiff provided a proposed Order that will be modified to reflect the Court’s ruling.