Motion to Set Aside Default
Next, Defendants argue the defamation cause of action is time barred. The Court again disagrees.
Defendants assert the claim is time-barred, because the writings incorporated into the Complaint are dated in August 2023, and the Complaint was filed in June 20, 2025. See Code Civ. Proc., § 340(c) (one-year limitations period for defamation). However, a statute of limitations defense must appear clearly on the face of the complaint; it is not enough that the claim might be timebarred. E-Fab, Inc. v. Accountants, Inc. Services (2007) 153 Cal.App.4th 1308, 1316.
The Complaint does not allege the writings from August, 2023 are the publications the claim for defamation is based on. Rather, it alleges after the writings were made in August, 2023, they were published in a public forum. Therefore, the statute of limitations defense does not appear clearly on the face of the Complaint, because it may be implied from the express allegations that the defamatory statements were made after the writings and before the statute of limitations period ran. Fire Ins. Exch., supra, 116 Cal.App.4th at 452; E-Fab, Inc., supra, 153 Cal.App.4th at 1316. Thus, the Court cannot find the claims are time-barred based on the pleadings.
Accordingly, Defendants’ Motion for Judgment on the Pleadings is hereby DENIED.
10. CU0002429 Hunter, Carol Jean v. Rodriguez, Linda
Appearances required for the Order to Show Cause re Contempt – Arraignment.
11. CU0002591 Melanie Gans-Prosser et al vs. Lake of the Pines Association, a California mutual benefit corporation et al
Defendant Lake of the Pines Association’s motion to set aside default is GRANTED pursuant to CCP 473(b).
Code of Civil Procedure section 473(b) provides in pertinent part:
“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 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....[T]he court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to the attorney’s mistake, inadvertence, 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....
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The court shall, whenever relief is 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.”
Here, the Court finds the default was entered appropriately in that the Declaration filed by Defendant’s attorney Joceline M. Herman on March 17, 2026 did not comply with CCP 430.41. 19
CCP 430.41 pertains to the mandate a party intending to demurrer to a complaint meet and confer in advance of filing a demurrer. Although entitled “Declaration...Pursuant to CCP 430.41”, the declaration itself asserts it seeks to obtain a “thirty (30) day extension of time to file a responsive pleading, pursuant to California Coe of Civil Procedure section 430.41, subd. (a)(2).” See, Declaration, Pg. 2, ll. 10-12 (emphasis added), yet nowhere in the declaration does it indicate Defendant intends to file a demurrer, motion to strike or motion for judgment on the pleadings.
Accordingly, the default was entered appropriately as CCP 430.41 does not afford an extension for any type of responsive pleading, and counsel’s declaration was broader than the code section contemplates. The Court notes, despite Plaintiff’s assertion Defendant filed a “CIV-141”, this optional judicial council form was not utilized by counsel for Defendant which, had it been, could have prevented entry of default. Moreover, the filing of a declaration cannot be interpreted as the Court’s acceptance of the assertions contained therein or agreement with same.
The Court has no ability to reject the filing of such a declaration, yet such in no way equates with agreement with its contents or assertions.
Nevertheless, it appears from the pleadings, the default entered here was due to counsel’s mistake. Such is attested to by counsel (despite the fact counsel may not have completely understood the reasoning for entry of default until now), the request has been filed within six months from entry of default, and the proposed responsive pleading has been included as an exhibit to counsel’s declaration.
Accordingly, the Motion to Set Aside is hereby GRANTED. The default entered on March 18, 2026 is hereby vacated.
In relation to the mandate the Court award Plaintiffs reasonable costs and fees, the Court finds reasonable costs and fees incurred by Plaintiffs to be the total sum of $2,000.00. Said amount shall be paid to Plaintiffs within ten (10) days of notice of entry of this order.
12. FL0000421 Cohen, Micah v. Cohen, Philip Alexander
Parties ordered to appear to show cause as to why they should not each be sanctioned $250.00 for failing to file a partial Judgment including termination of status as ordered on April 25, 2025.
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