CROSS-DEFENDANTS’ MOTION TO SET ASIDE DEFAULT AND DEFAULT JUDGMENT
LAW AND MOTION TENTATIVE RULINGS DATE: JULY 14, 2026 TIME: 8:30 A.M.
TENTATIVE RULINGS ARE NOT POSTED IN UNLAWFUL DETAINER CASES
Notice to prevailing parties: Local Rule 2.10.01 requires you to submit a proposed formal order incorporating, verbatim, the language of any tentative ruling – or attaching and incorporating the tentative by reference - or an order consistent with the announced ruling of the Court, in accordance with California Rule of Court 3.1312. Such proposed order is required even if the prevailing party submitted a proposed order prior to the hearing with two exceptions: (1) in unopposed matters where the moving party has provided a detailed proposed order or JCC form of order, or (2) where the tentative is simply to “grant”. Failure to comply with Local Rule 2.10.01 may result in the imposition of sanctions following an order to show cause hearing, if a proposed order is not timely filed.
No.: 23CV00018 related to 23CV00495, 24CV01665 GRAY v. VERBANEC CROSS-DEFENDANTS’ MOTION TO SET ASIDE DEFAULT AND DEFAULT JUDGMENT The motion is denied, as discussed below. I. BACKGROUND AND RELIEF REQUESTED
This is a neighbor dispute in the Santa Cruz Mountains. Plaintiffs are Mikyong Gray and Stephen Gray (“the Grays” or “plaintiffs”). They allege trespass, invasion of privacy, violation of Penal Code sections 632 and 605 and civil harassment. Plaintiffs filed an amended complaint on April 4, 2023. Defendant/cross-complainant Warren Verbanec (“Verbanec”) filed a crosscomplaint for willful and negligent trespass and intentional infliction of emotional distress against the Grays.
On December 3, 2025, this Court dismissed plaintiffs’ first amended cross-complaint, with prejudice, struck their answer to Verbanec’s cross-complaint and entered default against them. On March 23, 2026, this Court found in favor of Verbanec on his cross-complaint. The judgment included requiring the Grays to remove an encroachment and to pay monetary damages to Verbanec. (See, Judgment March 23, 2026).
On May 5, 2026, the Grays filed this motion to vacate their default and default judgment. The Grays, who are self-represented, move to vacate the default and default judgment entered against them on March 25, 2026, on the grounds of defective service, denial of due process, court staff error, improper pressure by opposing counsel, and excusable neglect under Code of Civil Procedure section 473.
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LAW AND MOTION TENTATIVE RULINGS DATE: JULY 14, 2026 TIME: 8:30 A.M.
II. LEGAL STANDARDS AND DISCUSSION
A. Defective service and Court Staff Interaction
The Grays contend default judgment was based on defective service and is therefore void. The Grays argue they were subject to electronic service without their consent. First, default judgment was originally entered on December 3, 2025, by this Court. The basis for this default was the Grays failure to appear at a scheduled case management conference when they were self-represented. The Grays fail to address this fact in their moving papers and fail to argue why they are entitled to relief from the Court’s default.
Below is a timeline of the events leading to the default against the Grays. July 17, 2025 – Mr. Gray becomes self-represented via a signed and filed substitution of attorneys. September 4, 2025 – Ms. Gray becomes self-represented after her counsel files a motion to withdraw. The signed order was served, via US Mail, on Ms. Gray at 1301 Sunset Ridge Road, Los Gatos, CA. September 25, 2025 – the Grays fail to file case management conference statements and fail to appear at the case management conference hearing.
The Court issued an Order to Show Cause, ordering the Grays to appear at the next hearing date on October 30, 2025 and to file, prior to the hearing, (1) a sworn declaration with the Court in response to the Order to Show Cause and (2) a case management conference statement. The Court served the September 25, 2025 Minute Order with this information on the Grays via US mail at 298 Dry Creek Road, Aptos, CA AND 1301 Sunset Ridge Road, Los Gatos, CA. December 3, 2025 – [the Order to Show Cause hearing was moved to this date and served by the Court on the Grays at 298 Dry Creek Road, Aptos, CA AND 1301 Sunset Ridge Road, Los Gatos, CA.] the Grays failed to appear at this Order to Show Cause hearing and failed to file a case management conference statement.
At the hearing, counsel for Verbanac informed the Court he served additional notice of the December 3, 2025, hearing by email and regular mail on the Grays. The Court then struck the Grays’ answers to the cross-complaint, dismissed their FAC with prejudice, and entered their default.
The Grays argue that service effected by counsel for plaintiff was defective. However, the Grays’ default was entered because of their failure to follow the Court’s directives to appear at a hearing, to file case management conference statements, and to appear at an Order to Show Cause hearing. The Order to Show Cause hearing was served by this Court on the Grays at the same address the Grays used when filing this motion. Therefore, there is no basis for the Grays
LAW AND MOTION TENTATIVE RULINGS DATE: JULY 14, 2026 TIME: 8:30 A.M.
to argue defective service since they were served by this Court at their address and were on notice of the Order to Show Cause hearing. Their subsequent failure to appear led to their default. However, the Court notes the Statement of Damages, filed on March 11, 2026, for example, was served on the Grays at both 298 Dry Creek Road, Aptos, CA and 1301 Sunset Ridge Road, Los Gatos, via US mail on January 23, 2026.
The Grays also argue they were subject to court staff error because of a simultaneous federal court action. Again, these interactions, of which there is no indication of wrongdoing by the Court staff, had nothing to do with why the Grays’ defaults were taken.
B. Mistake, inadvertence, surprise or excusable neglect
Since defendants are self-represented, the mandatory relief provision of Code of Civil Procedure section 473, subdivision (b) does not apply. The issue is whether the discretionary application of the statute is appropriate. 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 CCP §473(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.)
Here, plaintiffs have failed to demonstrate how their default, entered on December 3, 2025, was due to their mistake, inadvertence, surprise or neglect. The notice of the Order to Show Cause hearing was served on the Grays by this Court via US Mail. (The Court takes sua sponte notice of the October 30, 2025, Certificates of Mailing to both 298 Dry Creek Road, Aptos and 1301 Sunset Ridge Road, Los Gatos.)
DEFENDANT/CROSS-COMPLAINANT’S REQUEST FOR JUDICIAL NOTICE
LAW AND MOTION TENTATIVE RULINGS DATE: JULY 14, 2026 TIME: 8:30 A.M.
1 – 10: These requests are denied because they are already included in this Court’s file.
12-15 Documents filed in US District Court for the Northern District of California in case no. 5:25-cv-07307-VKD. Granted.
16, 18-20: These requests are denied because they are already included in this Court’s file.
21: “Notice to the Clerk’s Office Regarding Method of Service” filed by the Grays in US District Court for Northern California, case no. 5:25-cv-07307-VKD, filed January 29, 2026. Granted.
22: This request is denied because it is already included in this Court’s file.
23: Order from the US District Court for the Northern District of California – San Jose District, case no. 5:25-cv – 6967-NW. Granted.
24: Order from the US District Court for the Northern District of California -San Jose District, case no. 5:25-cv-07307-BLF, dismissing case as to Warren Verbanec with prejudice on 12/05/25. Granted.
26. Document entitled “Record of State Doc Regarding Removal” filed by the Grays in the US District Court for the Northern District of California – San Jose District, case no. 5:25-cv-07307-BLF, filed on 01/05/26. Granted.
30. Order from the US District Court for the Northern District of California – San Jose District, case no. 5:25-cv-07307-BLF issued on 03/30/26. Granted.
31: Order from the US District Court for the Northern District of California – San Jose District, case no. 5:25-cv-07307-BLF, issued 04/01/26. Granted.
No. 24CV03581
GRISCHY v. SANDERS
DEFENDANT’S MOTION TO FILE ANSWER TO PLAINTIFF’S SECOND AMENDED COMPLAINT AND TO FILE A CROSS- COMPLAINT
The motion is denied without prejudice because there is no proof of service. (See, Cal. Rules of Court, rule 3.1300(c) “[p]roof of service of the moving papers must be filed no later than five court days before the time appointed for the hearing.”)