Defendant Ricardo Guerrero's Motion to Set Aside Default and Default Judgment
Case Number
Case Type Civil Law & Motion Hearing Date / Time Wed, 07/15/2026 - 10:00 Nature of Proceedings Defendant Ricardo Guerrero's Motion to Set Aside Default and Default Judgment Tentative Ruling For Plaintiffs Jose A. Rodriguez and Ana L. Rodriguez: Self-Represented For Defendant Francisco Espinosa: No Appearance For Defendant Ricardo Guerrero: Geoffrey A. Neri, Nathan O. Lindsey, Brown Neri Smith & Khan LLP
For the reasons set forth herein: Defendant Ricardo Guerrero's motion to set aside default and default judgment is granted. Ricardo Guerrero shall separately file and serve his answer to Plaintiffs' complaint no later than July 22, 2026.
Background
This action commenced on September 12, 2025, by the filing of the judicial council form complaint by Plaintiffs Jose A. Rodriguez ("Jose") and Ana L. Rodriguez ("Ana") (collectively "Plaintiffs") against Defendants Francisco Espinosa ("Espinosa") and Ricardo Guerrero ("Guerrero") for breach of contract, common counts, and fraud. (Note: Due to common surnames, Plaintiffs will be referred to individually by their first names to avoid confusion. No disrespect is intended.)
Plaintiffs allege that on January 13, 2025, Espinosa contacted Plaintiffs regarding a business investment opportunity. At Espinosa's urging, Plaintiffs delivered him a cashier check, made out to Espinosa's brother-in-law Guerrero, in the amount of $20,000.00 on February 13, 2025. Espinoza represented to Plaintiffs that if anything went wrong with the investment, Espinoza would return all of the money plus the 50 percent profit on the invested money.
On February 18, 2025, Plaintiffs invested another $10,000.00 by way of a cashier check made out to Guerrero. Espinosa told Plaintiffs that the first payment on the investment would be on April 11, 2025, but on that date Plaintiffs did not receive any funds. At some point in time, Plaintiffs lent Espinosa another $10,000.00 that was paid by cashier check made payable to Ignacio Diaz. Despite promises to pay Plaintiffs and checks given to Plaintiffs that were returned with insufficient funds, Defendants have not paid Plaintiffs the money that Plaintiffs claim they are owed.
On September 15, 2025, both Defendants were personally served with the summons and complaint. Having received no answers to the complaint, on October 22, 2025, Plaintiffs filed a request for entry of default, against both Defendants, which was entered. On the same date, the Court clerk entered a default judgment, in Plaintiffs' favor, for $80,000.00 in damages and $535.00 in costs.
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Analysis
"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. . . .
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 accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the Court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect." (Code Civ.
Proc., Sec. 473, subd. (b).)
The motion was filed on April 22, 2026, and is just timely. The trial Court has broad discretion to vacate the judgment and/or the clerk's entry of default that preceded it. However, "this discretion may be exercised only after the party seeking relief has shown that there is a proper ground for relief, and that the party has raised that ground in a procedurally proper manner, within any applicable time limits." (Cruz v. Fagor America, Inc. (2007) 146 Cal.App.4th 488, 495.)
Unless the motion to set aside default is accompanied by an attorney affidavit of fault, which is not the case here, relief is discretionary, and the burden is on Defendant to demonstrate mistake, inadvertence, surprise, or excusable neglect. (See Lorenz v. Commercial Accept. Ins. Co. (1995) 40 Cal.App.4th 981, 989.) The party moving for relief on the basis of "mistake, inadvertence, surprise, or excusable neglect" must show specific facts demonstrating that one of these conditions was met. (Hopkins & Carley v. Gens (2011) 200 Cal.App.4th 1401, 1410.)
"The law favors judgments based on the merits, not procedural missteps. Our Supreme Court has repeatedly reminded us that in this area doubts must be resolved in favor of relief, with an order denying relief scrutinized more carefully than an order granting it. As Justice Mosk put it in Rappleyea, " 'Because the law favors disposing of cases on their merits, ' "any doubts in applying section 473 must be resolved in favor of the party seeking relief from default [citations]. Therefore, a trial Court order denying relief is scrutinized more carefully than an order permitting trial on the merits." ' [Citations.]" (Lasalle v. Vogel (2019) 36 Cal.App.5th 127, 134-135.)
By way of sworn declaration, as relevant to the present motion, Guerrero declares: "Upon being served with the summons and complaint, I retained an attorney to represent me in this matter. I believed that my attorney would handle the case, file any necessary responsive pleadings, and keep me informed of all deadlines and developments in the case." (Guerrero decl., P. 8.)
"My prior attorney never filed an appearance in this case, never filed an answer or any other responsive pleading on my behalf, and failed to notify me of the deadline to respond to the complaint. I was not aware that my attorney had failed to take action on my behalf." (Guerrero decl., P. 9.)
"I reasonably relied on my attorney to handle this matter. I had no reason to believe that my attorney was not fulfilling his professional obligations. I did not personally monitor the Court's docket because I trusted that my attorney was doing so. I am not a lawyer and I did not have independent knowledge of the procedural deadlines applicable to responding to a civil complaint." (Guerrero decl., P. 10.)
"My prior attorney is currently unresponsive to my attempts to contact him. I have been unable to obtain an affidavit of fault from him." (Guerrero decl., P. 11.)
"I first learned that default and default judgment had been entered against me in approximately March of 2026. I was shocked to learn this, as I believed my attorney had been handling the case." (Guerrero decl., P. 12.)
"Upon learning of the default, I promptly sought new legal representation, which I was not able to easily and quickly do given the status of the case in default. My current attorneys are now filing this motion on my behalf." (Guerrero decl., P. 13.)
"My failure to respond to the complaint was not the result of any avoidance of service or intentional disregard of this action. I retained an attorney and reasonably believed the matter was being handled." (Guerrero decl., P. 14.)
"I have a meritorious defense to this action. The funds at issue were provided by Plaintiffs as a speculative investment with their knowledge that the investment carried risk and that returns were not guaranteed. There was no written contract governing the arrangement. The investment did not yield the anticipated returns. I am prepared to defend this action on the merits if the default is set aside." (Guerrero decl., P. 15.)
A copy of the proposed answer is attached as Exhibit A to Guerrero's declaration. The Court accepts Guerrero's representations regarding retaining an attorney and expecting that a timely pleading would be filed in response to the complaint. Any inadvertence on the part of Guerrero in failing to timely answer the complaint was justifiable. Any neglect was excusable. It would be a miscarriage of justice to let the default stand. The motion will be granted.
Although, as noted above, the proposed answer to Plaintiffs' complaint is attached as an exhibit, it will be ordered that the answer be separately filed and served. The default and default judgment is not set aside as to Defendant Espinoza.
Tentative Ruling: Mechanics Bank v. California Organic Fertilizers, Inc., et al. Tentative Ruling: Mechanics Bank v. California Organic Fertilizers, Inc., et al.