Motion to Vacate Judgment and Enter Dismissal
Case No. 25CV463796 Motion to Vacate Judgment and Enter Dismissal
I. BACKGROUND This credit card collection case stems from Discovery Bank (“Bank”)’s Complaint filed on April 18, 2025 alleging a single causes of action for breach of contract against Defendant Andrew Little (“Little”). On June 17, 2025, a basic entry of default was entered against the Defendant Little. On November 14, 2025, the Honorable Beth McGowen authorized a default judgment in favor of the Bank in the amount of $8,536.79 against Defendant Little.
On March 12, 2026, Plaintiff Bank filed this motion to vacate judgment and enter dismissal of the case. The motion was accompanied by a proof of service indicating mail service.
The motion is unopposed. Per Code of Civil Procedure section 1005(b) opposition papers were due on July 24, 2026. No opposition papers were filed. A failure to oppose a motion may be deemed a consent to the granting of the motion. (California Rule of Court Rule 8.54(c); Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410). Failure to oppose a motion leads to the presumption that the plaintiff has no meritorious arguments. (Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal.App.3d 481, 489).
The Court has carefully reviewed the moving papers, including: notice of motion (totaling 3 pages); Declaration of Miranda Neal and attached Exhibit A (totaling 4 pages); proof of services; and the pleadings.
II. LEGAL STANDARD
A. PROCEDURAL VIOALTION The Court notes procedural violation by the plaintiff for failure to file a memorandum of points and authorizes in support of its motion as required under California Rule of Court, rule 3.1113(a)-(b). The court may construe the absence of a memorandum as an admission that the motion is not meritorious and cause for its denial. (Id.).
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Here, the Court balances the totality of circumstances, including judicial economy to avoid the expenditure of any further judicial resources, the court will look past the procedural violations and consider the motion on its merits. However, the plaintiff is hereby admonished to comply with Rule of Court and Code of Civil Procedure. Any future violations may result in the court’s refusal to consider deficient papers.
B. MOTION TO SET ASIDE Code of Civil Procedure section § 473(b) provides for both discretionary and mandatory relief. In terms of discretionary relief section 473(b), in pertinent part, reads as follows:
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. . .
The mandatory provision of section 473(b) reads, in pertinent part, as follows:
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.
The general underlying purpose is to promote the determination of actions on their merits. (Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830). Under this statute, an application for relief must be made no more than six months after entry of the judgment, dismissal, order, or other proceeding from which relief is sought and must be accompanied by an affidavit of fault attesting to the mistake, inadvertence, surprise or neglect of the moving party or its attorney. (Code of Civ. Proc., § 473(b); English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 143).
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III. ANALYSIS Here, Plaintiff Bank filed this motion seeking to vacate the judgment and dismiss the case. Although it fails to cite a specific statute, the Court finds that based on the substance of the motion and evidence provided, the motion to set aside is based on Code of Civil Procedure section 473(b), based on the plaintiff counsel’s mistake and inadvertence. Plaintiff counsel attests after that the default judgment entered on November 14, 2025 in the amount of $8,536.79 against the defendant and in favor of the Bank, Plaintiff discovered that Defendant Little had previously filed for bankruptcy. (Declaration of Neal ⁋ 2; Exh.
A). Plaintiff’s counsel attaches as Exhibit A and copy of the Pacer Bankruptcy Report as evidence. The bankruptcy report states a Chapter 7 bankruptcy case (case no. 25-51684)was filed by the defendant on October 30, 2025, which is approximately two weeks before a final entry of default was tended in this matter. (Exh. A). This motion was made within 120 days of the entry of default judgment, and the Court finds the motion timely.
The motion is unopposed. A failure to oppose a motion may be deemed a consent to the granting of the motion. (California Rule of Court Rule 8.54(c)). Failure to oppose a motion leads to the presumption that the defendant has no meritorious arguments. (Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal.App.3d 481, 489).
Plaintiff’s counsel asserts: “A Request for Dismissal is submitted with this declaration, for filing after judgment has been set aside and vacated.” (Declaration of Neal ⁋ 3). The Court notes that no such dismissal was attached to the declaration or Plaintiff’s motion.
IV. CONCLUSION Based on the foregoing, the motion being unopposed, the Court GRANTS the motion to vacate the default judgment. The Court will prepare the formal Order.
The Court ORDERS the plaintiff to file a dismissal within fifteen (15) days of this hearing.
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