Motion to Set Aside/Vacate Default
3 23-01365328 1) Motion for Protective Order 2) Motion to Compel Deposition (Oral or Written) Almaraz-Ramirez vs. Walmart Inc. Defendant Walmart, Inc.’s Motion for Protective Order and Plaintiff Alicia Almaraz-Ramirez’s Motion to Compel the Deposition of Grisel (Grey) Granados are CONTINUED to __.
Defendant is ORDERED to file “Doctor’s Note re: Grisel Granados, attached at Exhibit B to the Declaration of Timothy J. Denham, Esq. in support of Defendant’s Motion for Protective Order” with the Court within 5 days of this order. The Court does not have the note counsel represented they would be filing confidentially. The Court deems the note necessary to the disposition of these Motions.
6 25-01493428 Motion to Set Aside/Vacate Default
Black Diamond Defendant Linear Microsystems, Inc.’s motion to set aside the default Networks LLC vs. entered on January 28, 2026, is GRANTED. Linear Microsystems Inc Defendant seeks discretionary relief from the default 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 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.”
Defendant’s authorized agent, Patricia Cocco, has submitted a declaration in support of the Motion. Cocco states on August 26, 2025, she learned that a process server had delivered legal documents for Defendant. (Cocco Decl., ¶ 2.) Cocco contacted attorney Mark T. Risner to resolve the matter informally but did not retain him to appear in court, accept service, or file a response. (Cocco Decl., ¶ 3.) On September 8, 2025, Risner informed Cocco he had contacted Plaintiff’s attorney and asked them not to take a default while the parties attempted to resolve the matter. (Cocco Decl., ¶ 4.)
Over the following months, Plaintiff’s office continued sending courtesy notices to Risner, including notices on December 2, 2025, and January 15, 2026, which Cocco understood to mean the case was still active and that Plaintiff was not seeking a default. (Cocco Decl., ¶ 5.) On January 22, 2026, Cocco called Plaintiff’s office directly because she was trying to understand the amount Plaintiff was demanding and whether a payment plan was possible. (Cocco Decl., ¶ 7.) Cocco believed the matter was still being discussed and that Defendant would be allowed to respond once negotiations were concluded. (Cocco Decl., ¶ 9.)
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?”
These facts are sufficient to show surprise and excusable neglect. Therefore, relief from default is warranted.
Further, the application for relief is timely since the application was filed within 6 months of entry of default on 1-28-26 and default judgment on 2-17-26. (ROA 29, 47.)
Therefore, the request to set aside the default and default judgment is GRANTED.
Attorney Fees and Costs: Code of Civil Procedure section 473, subdivision (c)(1) states: “Whenever the court grants relief from a default, default judgment, or dismissal based on any of the provisions of this section, the court may do any of the following: [¶] (A) Impose a penalty of no greater than one thousand dollars ($1,000) upon an offending attorney or party. [¶] (B) Direct that an offending attorney pay an amount no greater than one thousand dollars ($1,000) to the State Bar Client Security Fund. [¶] (C) Grant other relief as is appropriate.”
If relief from default is based on evidence other than “attorney affidavit of fault,” the court may in its discretion order the defendant to pay the costs, including attorney fees, incurred by the plaintiff in obtaining the default judgment. (Rogalski v. Nabers Cadillac (1992) 11 Cal.App.4th 816, 823; Vanderkous v. Conley (2010) 188 Cal.App.4th 111, 118-119.)
Plaintiff requests reasonable attorneys’ fees and costs to defray costs incurred by Plaintiff to obtain the default and default judgment and to defend against this Motion. Defendant is ordered to pay $1,200 in attorney fees and costs to Plaintiff.
Defendant is ordered to file and serve the proposed Answer within 10 days of the notice of this ruling.
To the extent, the parties have filed an Opposition and Reply to a Motion to Stay Enforcement of Default Judgment (ROA 56, 64), no moving papers in support of a Motion to Stay Enforcement of Default Judgment were filed with the Court.
Moving Defendant to give notice. 7 25-01536474 Motion to BRING ELDER ABUSE/NEGLECT ACTION
Bruce vs. South County Plaintiff Maria Bruce’s Petition to Bring Elder Abuse/Negligent Action Hospice, Inc. in the Name of William Bruce Deceased is CONTINUED to ________________.
Shortly after Plaintiff filed the instant motion, Defendant South County Hospice, Inc. dba Cabrillo Hospice filed an answer to the complaint on 3/10/26.
On 5/27/26, the court continued the hearing on this motion to the current date. While the clerk served Defendant’s counsel with notice of the new hearing date, there is no proof that Plaintiff ever served Defendant with the motion. California Rules of Court, rule 3.1300(c) requires that a