RODRIGUEZ CHAVERO vs CLARK

25CV140807: RODRIGUEZ CHAVERO vs CLARK 09/08/2026 Hearing on Motion to Set Aside/Vacate Default (CCP 473.5) filed by Jose A. Rodriguez Chavero (Cross-Defendant) CRS# 770346693080 in Department 518

Tentative Ruling - 09/03/2026 Mark Fickes

The Motion to Set Aside/Vacate Default filed by Jose A. Rodriguez Chavero on 06/24/2026 is Denied.

BACKGROUND

Defendant and Cross-Complainant Hector Daniel Clark (“Clark”) filed his Cross-Complaint on March 13, 2026. On June 15, 2026, Clark submitted a Judicial Council Form CIV-100 requesting entry of default against Rodriguez Chavero on the Cross-Complaint. The clerk did not enter default. The CIV-100 was returned marked "Default NOT entered as requested," with the notation: "The Proof of Service on Cross-Complaint isn't adequate. The Cross-Complaint must be Personally Served."

Plaintiff and Cross-Defendant Jose A. Rodriguez Chavero (“Rodriguez Chavero”) filed his Answer to the Cross-Complaint, which was entered on the Court's docket on July 14, 2026. The Answer generally denies the allegations of the Cross-Complaint and asserts affirmative defenses. Rodriguez Chavero then filed the present motion, through counsel, seeking to set aside a default that he contends was entered on June 15, 2026, and lodged a proposed order that would set aside the purported default and "any judgment in this case." Clark opposes, contending that no default was ever entered. A separately noticed motion concerning the clerk's non-entry of default is calendared for the same hearing date.

LEGAL STANDARD

Code of Civil Procedure section 473, subdivision (b), authorizes relief from "a judgment, dismissal, order, or other proceeding taken against" a party through mistake, inadvertence, surprise, or excusable neglect. Section 473(b) "contains two distinct provisions for relief from default": a discretionary provision that is "broad in scope," and a mandatory provision that "narrowly covers only default judgments and defaults that will result in the entry of judgments." (Even Zohar Construction & Remodeling, Inc. v.

Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 838.) Both presuppose that a default, default judgment, or comparable proceeding has actually been taken against the moving party. As to the mandatory provision in particular, where "[n]o default was entered by the clerk, and there was no default judgment," the movant is "not entitled to mandatory relief because the circumstances here do not constitute a default or default judgment." (Hossain v. Hossain (2007) 157 Cal.App.4th 454, 459.)

DISCUSSION

A. No Default Was Entered 25CV140807: RODRIGUEZ CHAVERO vs CLARK 09/08/2026 Hearing on Motion to Set Aside/Vacate Default (CCP 473.5) filed by Jose A. Rodriguez Chavero (Cross-Defendant) CRS# 770346693080 in Department 518 The premise of the motion is that a default was entered against Rodriguez Chavero on June 15, 2026. The record is to the contrary. The clerk declined to enter default and returned Clark's CIV- 100 marked "Default NOT entered as requested," stating that the proof of service on the Cross- Complaint was inadequate and that the Cross-Complaint had to be personally served.

A request for entry of default that the clerk rejects does not become an entered default. Because no default was entered, there is no "default ... or other proceeding taken against" Rodriguez Chavero from which relief could be granted. (Code Civ. Proc., § 473, subd. (b).) The mandatory provision, which reaches only a clerk-entered default or a default judgment, is unavailable for the same reason. (Hossain, supra, 157 Cal.App.4th at p. 459.)

B. An Answer Is on File

Rodriguez Chavero's Answer to the Cross-Complaint is on file, having been entered on the docket on July 14, 2026. With a responsive pleading on file, there is no basis for entry of default, and none of the relief the motion seeks is available: there is no default to vacate, and no default judgment has been entered against Rodriguez Chavero. The proposed order's reference to setting aside "any judgment" therefore has no corresponding event in the record.

C. Section 473(b) Affords No Relief Absent a Default

Because no default or default judgment was entered, the Court does not reach the parties' arguments about excusable neglect, the timeliness of Clark's default request under California Rules of Court, rule 3.110(g), or the absence of an attorney affidavit of fault. Section 473(b) relief presupposes a default, default judgment, or other proceeding taken against the moving party (Even Zohar Construction & Remodeling, supra, 61 Cal.4th at p. 838), and none exists here. The motion is moot.

CONCLUSION

No default was entered against Rodriguez Chavero, and his Answer to the Cross-Complaint is on file. There is accordingly no default to set aside. The court orders as follows:

1. Plaintiff/Cross-Defendant's Motion to Set Aside Default is DENIED AS MOOT.

CASE MANAGEMENT AND FURTHER PROCEEDINGS

The Court makes the following observations and directions, which apply to all further proceedings in this matter. This case has been marked by motion practice disproportionate to the issues and the amount in controversy, including the several motions the Court has now resolved and motions previously denied. The Court finds that the case has become over-litigated and unduly burdensome, and that more meaningful, good-faith meet-and-confer efforts would likely reduce the motion practice going forward. Now that both parties are represented by counsel, the Court expects counsel and the parties to act reasonably, to cooperate in the discovery process,

SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA

25CV140807: RODRIGUEZ CHAVERO vs CLARK 09/08/2026 Hearing on Motion to Set Aside/Vacate Default (CCP 473.5) filed by Jose A. Rodriguez Chavero (Cross-Defendant) CRS# 770346693080 in Department 518 and to resolve disputes without court intervention wherever possible.

To that end, the Court orders as follows:

1. All further meet-and-confer efforts required by statute or rule shall be conducted by video conference (for example, Zoom or a similar platform) and shall be recorded. The Court will not consider any motion for which a meet-and-confer effort is a prerequisite unless the moving papers are accompanied by a declaration attesting to that effort.

2. For any further motion for which meet-and-confer is required, if a party contests the Court's tentative ruling, both counsel and the parties themselves shall appear in person, and not remotely, at the hearing on that motion. They shall also bring a copy of the meet-and-confer efforts.

PLEASE NOTE: Pursuant to California Rule of Court 3.1308, subdivision (a)(1), this tentative ruling will become the order of the Court unless it is contested before 4:00 PM on the court day preceding the noticed hearing.

To contest a tentative ruling, a party should do the following:

First, the party must notify Department 518, by email at Dept518@alameda.courts.ca.gov and copy all counsel of record and self-represented parties. The contesting party must state in the subject line of the email the case name, case number and motion.

Second, the party shall log into the eCourt Public Portal, search for this case (e.g., by case number), select the case name, select the "Tentative Rulings" tab, click the "Click to Contest this Ruling" button, enter the party's name and a brief statement of the party's reason for contesting the tentative, and click "Proceed."

Please note the Court does not permit remote appearances for motions for summary judgment that are contested. If you contest a Motion for Summary Judgment, you must appear in person.

For all other motions (unless otherwise noted in the tentative ruling), Parties may appear via videoconference, using the Zoom.com website or application. TO CONNECT TO ZOOM: Department 518 is inviting you to a scheduled ZoomGov meeting.

Topic: Department 518's Personal Meeting Room

Join ZoomGov Meeting https://alameda-courts-ca-gov.zoomgov.com/j/16054307984

SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA

25CV140807: RODRIGUEZ CHAVERO vs CLARK 09/08/2026 Hearing on Motion to Set Aside/Vacate Default (CCP 473.5) filed by Jose A. Rodriguez Chavero (Cross-Defendant) CRS# 770346693080 in Department 518

Meeting ID: 160 5430 7984

One tap mobile +16692545252,,16054307984# US (San Jose) +14154494000,,16054307984# US (US Spanish Line)

---

Dial by your location • +1 669 254 5252 US (San Jose)