HOLT vs NOR CAL TOWING

24CV003218: HOLT vs NOR CAL TOWING 05/08/2025 Hearing on Motion to Set Aside/Vacate Default (CCP 473.5) in Department 53

Tentative Ruling

NOTICE:

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24CV003218: HOLT vs NOR CAL TOWING 05/08/2025 Hearing on Motion to Set Aside/Vacate Default (CCP 473.5) in Department 53

will forward the form to the Court Reporter’s Office and an official reporter will be provided.

TENTATIVE RULING: Defendant Nor-Cal Towing and Transport, Inc.’s motion to set aside entry of default is granted.

By way of the instant motion, Defendant moves to set aside the default that was entered against it on October 18, 2024. Defendant contends that the default was entered as the result inadvertence, surprise, or excusable neglect.

CCP § 473(b) allows a party to obtain relief from a default taken against the party as a result of “mistake, inadvertence, surprise, or excusable neglect.” Defendant’s CEO Barbara Morris declares that she received notice that a copy of the summons and complaint were delivered to Defendant’s West Sacramento location on February 29, 2024. (Morris Decl. ¶ 2.) Morris also received a Notice of Case Assignment and Case Management Conference setting a December 27, 2024 hearing. Morris declares that Defendant had been sued once before and in that case a hearing date was set and Defendant appeared on that date and presented its case to the judge. (Id. ¶ 3.)

Morris declares that she believed that the December 27, 2024, date was the date for Defendant to appear and present its case. (Id.) Morris declares that on December 24, 2024, she began to prepare for the December 27, 2024, hearing date and closely read the Notice of Case Assignment and Case Management Conference and realized that Defendant had not filed a case management conference statement. (Id. ¶ 5.) Morris immediately began efforts to retain an attorney for assistance and advice regarding the failure to file a case management statement.

Morris retained counsel on December 26, 2024, and was advised that the December 27, 2024, hearing date was not a date to present its case and that a default had been entered. (Id. ¶ 7.) The motion was filed the very next day. Morris also declares that at the time the documents were served, her sister was battling brain cancer and ultimately passed away in June 2024. (Id. ¶ 4.)

Plaintiff, in pro per, has filed an “objection” to the motion as well as a separate opposition and opposes the motion on the basis that Defendant deliberately failed to answer the complaint and the motion lacks credibility. Plaintiff also argues that since Defendant had been sued before it should have been familiar with the Court process. Plaintiff also contends that she will be prejudiced if relief is allowed because “legal costs and waiting periods would increase and lengthen the time of the proceedings.” (Opp. 3:18-19.) The Court rejects all of these arguments as they fail to account for the applicable law regarding Defendant’s motion.

It must be stressed that CCP § 473 is to be liberally applied where the party in default moves promptly to seek relief, and the party opposing the motion will not suffer

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

24CV003218: HOLT vs NOR CAL TOWING 05/08/2025 Hearing on Motion to Set Aside/Vacate Default (CCP 473.5) in Department 53

prejudice if relief is granted. (Elston v. City of Turlock (1985) 38 Cal.3d 227, 233.) In such situations, “very slight evidence will be required to justify a court in setting aside the default.” (Id. at 235 [emphasis added].) Because the law strongly favors trial and disposition on the merits, any doubts in applying section 473 must be resolved in favor of the party seeking relief. (Waite v. Southern Pacific Co. (1923) 192 Ca.467.) It is California’s “policy that cases should be decided on their merits.” (Smeltzley v.

Nicholson Mfg. Co. (1977) 18 Cal.3d 932, 936.) Here, the default was entered on October 18, 2024, and Defendant promptly sought relief by filing the instant motion approximately two months later and one day after Defendant contacted an attorney. Thus, very slight evidence is required. Defendant’s declaration indicates that its CEO mistakenly failed to read the documents served upon Defendant closely and based on prior experience with the Court system, believed that the December 27, 2024, case management hearing was the date Defendant was required to present its case.

This evidence is sufficient to show that Defendant’s failure to file an answer was the result of mistake, inadvertence and/or excusable neglect.

The Court finds that Defendant has shown that it is entitled to relief pursuant to CCP § 473(b) on the basis of mistake, inadvertence and/or excusable neglect. The default entered on October 18, 2024 is therefore set aside.

Defendant shall file and serve the proposed answer attached as exhibit A to Defendant’s counsel’s declaration no later than May 15, 2025. The Court will not deem the proposed pleading filed and served.

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.