Motion to Set Aside Default
Given that Plaintiff has already unsuccessfully attempted to amend these causes of action and given that no suggestion is made how the FAC may be further amended to state a cause of action, the demurrer to the fourth and fifth causes of action is sustained without leave to amend.
Defendant Dennis G. Chang, D.O.'s Demurrer to Plaintiff's First Amended Complaint is SUSTAINED without leave to amend. Defendant to file his answer to the complaint within 20 days.
Abia, an individual vs. Advanced Auto Care, a California business entity of unknown form, et al. Motion to Set Aside Default Moving Party: Defendant Advanced Auto Care Responding Party: Plaintiff Constantino Abia Tentative Ruling: Grant
BACKGROUND This action arises from the repair of Plaintiff Constantino Abia's ("Plaintiff") vehicle by Defendant Advanced Auto Care ("Defendant"). On June 2, 2026, Defendant's default was entered. Defendant now moves to set aside the default. Plaintiff opposes, and Defendant replies.
ANALYSIS I.
Legal Standard
Under Code of Civil Procedure section 473(b), the Court may relieve a party from a default taken against him through his mistake, inadvertence, surprise, or excusable neglect, and his application must be filed no more than six months after entry of the order from which relief is sought. (Code Civ. Proc. Sec. 473, subd. (b).) ¿¿ A mistake is a basis for relief under section 473 when by reason of the mistake a party failed to make a timely response.¿ Surprise occurs when a party is unexpectedly placed in a position to his injury without any negligence of his own. Excusable neglect is a basis for relief when the party has shown some reasonable excuse for the default.¿ (Credit Managers Association of California v. National Independent Business Alliance (1984) 162 Cal.App.3d 1166, 1173; Davis v. Thayer (1980) 113 Cal.App.3d 892, 905.)
Under Code of Civil Procedure section 473, the moving party bears the burden of demonstrating an excusable ground, such as fraud or mistake, justifying a court's vacating a judgment. (Basinger v. Roger & Wells (1990) 220 Cal.App.3d 16, 23-24.)¿¿¿¿ Relief under this section is mandatory when based on an attorney affidavit of mistake, inadvertence, surprise, or neglect; otherwise, it is discretionary. (Code Civ. Proc. Sec. 473, subd. (b).) Under the mandatory relief provision, the affidavit does not need to contain a reason for the mistake. (Martin Potts &
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II.
Discussion
As an initial matter, the Court finds that this motion is timely because it was filed within six months after the default was entered on June 2, 2026.
In considering the papers, including the parties' supplemental briefing, the Court finds that Defendant has shown that its default was the result of its counsel's inadvertence and neglect, given attorney Edgar Manukyan's attested communication failures and neglectful conduct regarding the handling of Defendant's responsive deadline to Plaintiff's complaint, which ultimately resulted in the entry of Defendant's default. (Manukyan Decl. P.P. 2-16.)
Although Plaintiff challenges this conduct as the factual basis for Defendant's requested relief from default, the Court finds that the Manukyan Declaration is sufficient to establish attorney fault as the basis for mandatory relief under Section 473(b). (Ibid.; Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 257, italics in original and citation omitted ["The purpose of this provision 'was to alleviate the hardship on parties who lose their day in court due solely to an inexcusable failure to act on the part of their attorneys.'"].)
Nor does the case record show that any default judgment entered against Defendant on July 2, 2026, as Plaintiff asserts in his supplemental briefing. Rather, it appears that a request for default judgment was filed on that date but never entered into judgment. Therefore, the motion to set aside the default is granted.
Furthermore, as relief is granted based on the attorney's affidavit of fault, the Court shall direct defense counsel to pay reasonable compensatory legal fees and costs to Plaintiff. (Code Civ. Proc. Sec. 473, subd. (b).) ¿¿
RULING Defendant Advanced Auto Care 's Motion to Set Aside Entry of Default is GRANTED. The default entered against Defendant on June 2, 2026, is set aside. Exhibit "2" to the declaration of attorney Noah Green shall be deemed the operative answer. Defendant to