LVNV Funding LLC v. Dyson

CASE NUMBER: 25CVG-02396 Tentative Ruling on Motion to Set Aside Default: Defendant Megan Dyson moves to set aside default judgment pursuant to CCP 473(b) on the grounds of surprise and excusable neglect. The matter has been properly noticed and is unopposed.

Merits. CCP § 473(b) permits the Court to set aside a default or order entered against an aggrieved party due to mistake, surprise, inadvertence or excusable neglect. The burden is on the moving party to show that the neglect was excusable: i.e., that the default could not have been avoided through the exercise of ordinary care. Jackson v. Bank of America (1983) 141 Cal.App.3d 55, 58. “[T]he acts which brought about the default must have been the acts of a reasonably prudent person under the same circumstances.” Id. The moving party has the burden of proof to establish one of these conditions by a preponderance of the evidence. Luz v. Lopes (1960) 55 Cal.2d 54, 62. The moving party must submit affidavits or testimony demonstrating a reasonable cause for the default. 9

Huh v. Wang (2007) 158 Cal.App.4th 1406, 1491. CCP § 473(b) is to be liberally construed to further the policy of adjudicating legal controversies on the merits. Younessi v. Woolf (2016) 244 Cal.App.4th 1137, 1146.

Here, Defendant has submitted sufficient evidence that her failure to file a responsive pleading was due to surprise or excusable neglect. Plaintiff received timely notice of this Motion and did not file an opposition.

The Motion to Set Aside Default is GRANTED. The Default is VACATED. No proposed order has been lodged as required by Local Rule 5.17(D). Defendant is ordered to submit a proposed order. Defendant is granted fifteen days leave from today’s date to file her responsive pleading. The Proposed Answer is not deemed filed.

MARSHALL VS. EVERLAND GROUP LLC, ET AL.