Motion to Set Aside Default
Mark Neville v. Royal Moving & Storage, LLC, et al., 26CV-0039
Hearing: Motion to Set Aside Default
Date: July 30, 2026
Mark Neville filed this action on January 20, 2026, against Royal Moving & Storage LLC (Royal Moving) and Best Choice Moving, LLC. The proof of service on file reports Royal Moving was personally served with the summons and complaint via its authorized agent on February 3, 2026. Defendants’ default was entered on March 11, 2026.
Royal Moving filed a motion to set aside its default pursuant to Code of Civil Procedure sections 473, subdivision (b) on March 30, 2026. The motion initially came on for hearing on April 30, 2026. However, because Royal Moving did not file proof of notice of hearing, the motion was continued to September 17, 2026.1 Plaintiff filed an ex parte application requesting immediate return of work tools and personal property on May 28, 2026. The Court denied the application for improper service on Defendant. (Order, 6/1/26.) The Court also advanced the hearing on the motion to set aside default to July 30, 2026. (Ibid.)
On July 14, 2026, Royal Moving, by its attorney of record, filed supplemental points and authorities, declarations and exhibits in support of its motion. These documents were served by email on Plaintiff on the date of filing. Plaintiff has not filed an opposition responsive to these supplemental documents to date.
Royal Moving contends that the parties entered into a written agreement agreeing to “the jurisdiction of the county and state of residency of the carrier place of business” (i.e. Clark County, Nevada). (See Martinez Dec., ¶ 3, Ex. A, ¶ 4, Ex. B.)
Royal Moving argues the default should be set aside because its principals mistakenly believed the company could appear without counsel and therefore did not timely retain counsel to respond. Defendant also contends the parties were in active, ongoing settlement discussions, which contributed to the delay in filing a response. Defendant maintains the failure to respond was inadvertent, not intended to prejudice Plaintiff or cause unnecessary delay or expense.
Royal Moving notes that the motion was brought “within approximately four months of the entry of default on March 11, 2026. Declaration of Duncan S. Skogsberg, ¶2.” (See Supp. Mem. P. & A., p. 3, ll. 13-14.) Mr. Skogsberg declares that he proposed to Plaintiff to enter into a stipulation to set aside the entry of default. (Skogsberg Dec., ¶ 2, Ex. A.) However, as of July 14, 2026, counsel had not received a response from Plaintiff. (Ibid.)
1 The Court additionally noted in its ruling that the motion was filed without counsel and if Royal Moving & Storage LLC is not represented by counsel at the time of the continued hearing, the Court intends to deny the motion.
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Mr. Skogsberg additionally declares that Royal Moving “intends to respond to the Complaint by way of a special appearance to file a Motion to Dismiss or Stay based upon the doctrine of Forum Non Conveniens on the grounds that the parties’ written agreement requires that any litigation arising out of the transaction and agreement between them be resolved the [sic] Nevada county where defendant’s business is headquartered.” (Skogsberg Dec., ¶ 3, Ex. B.)
Royal Moving seeks relief under Code of Civil Procedure section 473 subdivision (b), which 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.
(Code Civ. Proc., § 473, subd. (b).)
“Unless the application is accompanied by an ‘attorney affidavit of fault’, relief is discretionary and must be based on a showing of ‘mistake, inadvertence, surprise, or excusable neglect.’ [CCP § 473(b); see Lorenz v. Commercial Acceptance Ins. Co. (1995) 40CA4th 981, 989... (citing text)] [¶] 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.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2026) ¶ 5:310, citing Hopkings & Carley v. Gens (2011) 200 Cal.App.4th 1401, 1410.)
Here, Royal Moving’s points and authorities describe the circumstances preceding its failure to respond, but the motion is unsupported by competent evidence. (See Supp. Mem. P. & A., pp. 2, ll. 3-19; 4, ll. 14-21.) However, argument without evidentiary support is insufficient to warrant discretionary relief under Code of Civil Procedure section 473 subdivision (b). (See Ray Kizer Construction Company v. Vernon Young (1968) 257 Cal.App.2d 766, 768 [abuse of discretion to grant relief where moving papers “utterly failed to set forth any facts showing mistake, inadvertence, surprise or excusable neglect”].)
Accordingly, Royal Moving’s request to set aside entry of Royal Moving’s default is denied without prejudice.
ORDER (PROPOSED)
Royal Moving’s request to set aside entry of Royal Moving’s default is denied without prejudice.
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