Motion to Set Aside Default
1048; see also Morgan v. Superior Court (1959) 172 Cal.App.2d 527, 530 [”If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend . . . .”], citations and quotations omitted.)
Defendant also attacks the validity of the claims asserted in the TAC.
However, where the non-moving party argues that a proposed pleading is futile, “[l]eave to amend should be denied only where the facts are not in dispute, and the nature of the plaintiff’s claim is clear, but under substantive law, no liability exists and no amendment would change the result.” (Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428.)
Even where the amended pleading puts forth a novel legal theory, “the preferable practice would be to “permit the amendment and allow the parties to test its legal sufficiency by demurrer, motion for judgment on the pleadings or other appropriate proceedings.” (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048.)
Here, the critical facts are in dispute and it is not clear, based on undisputed facts, that Plaintiffs’ additional claim for statutory violations will fail.
In any case, Defendants will still have the opportunity to challenge the new claim once the TAC is filed.
Therefore, the court will grant the motion for leave to amend.
Plaintiffs shall give notice of these rulings.
7 NM Law, APC vs. Motion to Set Aside Default Cano Defendant Sharon Rachelle Cano’s Motion to Set Aside Default and Default Judgment is CONTINUED to November 2, 30-2024-01430114 2026 at 9:00 a.m. in Department N15.
Defendant Sharon Rachelle Cano is ORDERED to serve upon Plaintiff NM Law, APC all of the motion papers for the Motion to Set Aside Default and Default Judgment and file the appropriate proof of service within 30 days of this ruling.
Looking for case law or statutes not cited here? Search published authorities
Examples: “Why did the court rule this way?” · “What were the procedural grounds?” · “Is appearance required?”
Defendant Sharon Rachelle Cano moves to set aside the entry of default and default judgment entered against her. (See ROA #45.)
Service of Motion
The Civil Procedure Code requires that all motion papers must be served at least 16 court days before the hearing on the motion. (See Code Civ. Proc., § 1005, subd. (b).)
In addition, the “[p]roof of service of the moving papers must be filed no later than five court days before the time appointed for the hearing.” (Cal. Rules of Court, rule 3.1300(c).)
The court records reveal that proof of service of the motion papers has been filed.
In addition, Plaintiff has not filed an opposition or response to the motion, implying that it has not received the motion papers.
In fact, the court records reveal that on May 22, 2026, Plaintiff’s Counsel informed Defendant that Plaintiff had not received the motion papers. (See ROA #70, Exh. D at p. 1. [“Dear Ms. Cano, I understand you have filed a motion to set aside the default. We have not received a copy of the motion, so please send it to us at your first available opportunity. You may email or mail it ot [sic] our offices.”].)
Therefore, the court will continue the hearing on this motion and order that Defendant serve the motion papers and notice of this ruling on Plaintiff and file a proof of service showing service.
The court may deny the motion if Plaintiff fails to serve the motion papers and notice of ruling, and file a proof of service, as required.
Plaintiff shall give notice of this ruling.
8 National Funding, Motion to Set Aside Default Inc. vs. R&R Construction and Defendants Ruben Reveles’ and R&R Construction and Real Real Estate Estate Development, Inc.’s Motion to Set Aside Default and Development, Inc. Default Judgment is DENIED.
Pending Motion 30-2024-01433690 Defendants Ruben Reveles and R&R Construction and Real Estate Development, Inc. move to set aside the default and default judgment entered against them in this case, pursuant to Civil Procedure Code section 473.5. (See ROA #13, #23.)