ELENA MARITI VS. COUNTY OF SAN MATEO, ET AL.

September 1, 2026 Law and Motion Calendar PAGE 7 Judge: HONORABLE NANCY L. FINEMAN, Department 04 ________________________________________________________________________

2:00 PM LINE 2 23-CIV-03902 ELENA MARITI VS. COUNTY OF SAN MATEO, ET AL.

ELENA MARITI PRO SE COUNTY OF SAN MATEO

MOTION TO SET ASIDE DEFAULT PURSUAN TO CODE OF CIVIL PROCEDURE SECTION 473(b)

TENTATIVE RULING:

The court GRANTS Dignity Health dba Sequoia Hospital (erroneously sued as Dignity Health and CommonSpirit Health (collectively Dignity defendants) motion to set aside default pursuant to Code of Civil Procedure section 473, subdivision (b).

The court grants the parties’ requests for judicial notice, but as limited to the applicable law. Most of the documents are not for their truth but for notice only.

The Hon. Nancy L Fineman has been the single assigned judge in this case since it was filed on August 21, 2023 and has presided over multiple hearings in this case. The court file notes that there have been stipulations between the parties to make this case more efficient, e.g. stipulation and order to continue motion for summary judgment and motion to reset ADR scheduling, stipulation and order to file second amended complaint, and stipulation and order granting mutual stipulation reflecting correct Dignity defendant entity.

Yet, when the Dignity defendants failed to timely file an answer to the second amended complaint, plaintiff Elena Martiti failed to provide notice to counsel for the Dignity defendants of this missed deadline even though seven days after the responsive pleading was due, plaintiff emailed counsel for the Dignity defendants for an extension to respond to discovery. (Paez Decl., ¶ 13, ex. B.) Instead, without notice, she sought and obtained default on May 20, 2026. This is the type of unprofessionalism and gamesmanship that the court abhors.

Even though plaintiff is a pro per litigant, she is held to the same professional standards as attorneys. (Kobayashi v. Superior Court (2009) 175 Cal.App.4th 536, 543.) As a leading practice guide explains:

[5:69.2] PRACTICE POINTER FOR PLAINTIFFS: If you're representing plaintiff and have had any contact with a lawyer representing defendant, don't even attempt to get a default entered without first giving the lawyer written or telephonic notice of your intent to request entry of default, and a reasonable time within which defendant's pleading must be filed to prevent your doing so. [Fasuyi v. Permatex, Inc. (2008) 167 CA4th 681, 701, 84 CR3d 351, 365 (quoting text); McClain v. Kissler (2019) 39 CA5th 399, 450-451, 251 CR3d 885, 925-926 & fn. 9 (J. Richman dissent.opn.) (citing text); Lasalle v. Vogel (2019) 36 CA5th 127, 135, 248 CR3d 263, 269]

September 1, 2026 Law and Motion Calendar PAGE 8 Judge: HONORABLE NANCY L. FINEMAN, Department 04 ________________________________________________________________________ If you give such warning, courts may be less sympathetic to claims by defendant's lawyer of “mistake, inadvertence, surprise, or excusable neglect” in failing to plead on time, and thus less willing to grant discretionary relief under CCP § 473(b), ¶ 5:310 ff.

On the other hand, if you fail to give such notice, courts will usually set aside the default, so that the net result may be a waste of your time and your client's money. In addition, taking a “secret” default is a sure way of antagonizing opposing counsel, thereby complicating future handling of the case.

d. [5:70] Effect of failure to warn: In the absence of a prior warning of default, courts are inclined to grant CCP § 473(b) motions to set aside defaults. [See Smith v. Los Angeles Bookbinders Union No. 63 (1955) 133 CA2d 486, 500, 284 P2d 194, 201; Pearson v. Continental Airlines (1970) 11 CA3d 613, 619, 89 CR 853, 857; Fasuyi v. Permatex, Inc. (2008) 167 CA4th 681, 701, 84 CR3d 351, 365 (quoting text)]

But, in the absence of an “attorney affidavit of fault” (see ¶ 5:292 ff.), such relief is not mandatory; and denial of relief is not necessarily an abuse of discretion. I.e., the failure to warn does not require the court to grant relief. [Bellm v. Bellia (1984) 150 CA3d 1036, 1038, 198 CR 389, 390; Fasuyi v. Permatex, Inc., supra (quoting text)]

(Cal. Prac. Guide Civ. Pro. Before Trial, §§ 5:69.2, 5:50 (TRG June 2026 update) [emphasis added].)

The declarations submitted by Dignity Health’s counsel demonstrate that there was an honest mistake in calendaring and the court finds the failure to file a response was because of mistake, inadvertence, and/or excusable neglect under Code of Civil Procedure section 473, subdivision (b), one of the sections set forth in the Dignity defendants’ notice of motion. And plaintiff, who had reached past agreements in the past and requested extensions, should have contacted defense counsel before filing the default.

The law favors judgments based on the merits, not procedural missteps. Our Supreme Court has repeatedly reminded us that in this area doubts must be resolved in favor of relief, with an order denying relief scrutinized more carefully than an order granting it. “As Justice Mosk put it in Rappleyea [v. Campbel (1994) 8 Cal.4th 975] Because the law favors disposing of cases on their merits, any doubts in applying section 473 must be resolved in favor of the party seeking relief from default [citations].” (Lasalle v. Vogel (2019) 36 Cal.App.5th 127, 134–135 [internal quotations omitted].)

Accordingly, the court vacates the request for entry of default filed on May 20, 2026, no default judgment shall be entered against the Dignity defendants at this time, the Dignity defendants shall file the proposed answer submitted with its motion within 10 days after notice of entry of order, and if for some reason the answer is not filed, plaintiff shall communicate in writing with defense counsel to remind them of the deadline before seeking another default.

September 1, 2026 Law and Motion Calendar PAGE 9 Judge: HONORABLE NANCY L. FINEMAN, Department 04 ________________________________________________________________________ If the tentative ruling is uncontested, it shall become the order of the court. Thereafter, counsel for the Dignity defendants shall prepare a written order consistent with the court’s ruling for the court’s signature, pursuant to California Rules of Court, rule 3.1312, and provide written notice of the ruling to all parties who have appeared in the action, as required by law and the California Rules of Court.