Manuel Torres et al v. Jose Gomez et al

In The Matter of Sean Gildenblat 26PR000192

PETITION FOR ORDER AUTHORIZING COMPROMISE OF MINOR’S CLAIM (Pr.C. 3500 et seq.)

TENTATIVE RULING: The Petitioner is GRANTED. The Court sets the matter for Status Conference, to confirm purchase of annuities described in the petition, on November 04, 2026, at 8:30 a.m., in Dept. A.

The Court orders that Petitioner file one or more declaration(s) from Petitioner or Petitioner’s counsel of record, under penalty of perjury, attesting to the truth of the following facts: (1) that declarant has reviewed the original annuity contract, (2) that the substantive terms of the annuity contract are the same as those set forth in the Petition, and (3) that a true and correct copy of the annuity contract is attached to the declaration. If such proof is filed at least five Court days prior to the hearing, the hearing may be vacated, and no appearance required.

If Petitioner fails to timely comply with the foregoing, the Court will require personal appearance of Petitioner and counsel, at the November 4, 2026, hearing, for purposes of explaining the failure to comply. The Court may issue an Order to Show Cause re: Monetary Sanctions or make other orders as may appear necessary.

Finally, the Court orders that attorney’s fees and costs allowed in this matter shall remain in Petitioner’s attorney’s client trust account until any annuity described in the Petition has been purchased and proof conforming to the Court’s requirements (set forth above) has been filed. This order applies only to fees and costs allocated or attributable to a minor’s settlement; fees and costs incurred which pertain to settlements of non-minors are not implicated by this order.

CIVIL LAW & MOTION CALENDAR – Hon. Cynthia P. Smith, Dept. A (Historic Courthouse) at 8:30 a.m.

Manuel Torres et al v. Jose Gomez et al 24CV001428

MOTION TO SET ASIDE/VACATE DEFAULT AND DEFAULT JUDGMENT

TENTATIVE RULING: The motion is GRANTED. The Clerk is ordered to set aside the Default and Default Judgment entered against Defendant Jose Gomez. Mr. Gomez is granted 10 calendar days’ leave, from Notice of Entry of Order, to serve and file an Answer to the Complaint, in substantially the same form as the [Proposed] Answer submitted to the Court on August 28, 2026. The Clerk is to send notice of Entry of Order to the parties. The matter is set for Case Management Conference on January 20, 2027, at 8:30 a.m. in Dept. A.

The moving party failed to include in the notice of this motion proper notice of the Court’s tentative ruling system as required by Local Rule 2.9. Moving party is directed to immediately provide, by telephone call AND email, the missing notice to opposing party/ies forthwith. The requirements for requesting oral argument under Local Rule 2.9 remain in effect. However, the Court may grant belated requests for oral argument or continuance of

hearing, made by any party who represents it did not timely receive the required notice, regardless of whether or not moving party is present at the hearing.

Defendant Jose Gomez moves, pursuant to Code of Civil Procedure sections 473.5 and 473(d), for an order setting aside and vacating the default judgment entered on June 10, 2025, in this action.

Discretionary relief based upon a lack of actual notice under section 473.5 empowers a court to grant relief from a default judgment where a valid service of summons has not resulted in actual notice to a party in time to defend the action. (See Tunis v. Barrow (1986) 184 Cal.App.3d 1069, 1077–1078; see also § 473.5 subd. (a).) A party seeking relief under section 473.5 must provide an affidavit showing under oath that his or her lack of actual notice in time to defend was not caused by inexcusable neglect or avoidance of service. (See Tunis v. Barrow, supra, 184 Cal.App.3d at pp. 1077–1078, 229 Cal.Rptr. 389; see also § 473.5 subd. (b); Anastos v. Lee, 118 Cal. App. 4th 1314, 1319, 13 Cal.Rptr. 3d 716, 718 (2004).)

The parties have submitted competing declarations on both the issue of whether Mr. Gomez was actually served and whether he had actual notice of the litigation.

In this context, the Court considers whether relief is appropriate pursuant to Code of Civil Procedure section 473 subdivision (b), based on “mistake, inadvertence or excusable neglect.” When a defendant promptly seeks relief and there is no showing of prejudice to the plaintiff, “very slight evidence” is all that is required to justify setting aside the default. (See Purdum v. Holmes (2010) 187 Cal.App.4th 916, 922.) The policy favoring a trial on the merits should prevail unless inexcusable neglect is clear. (New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1419-1420 (New Albertsons).)

Mr. Gomez asserts that he never received any documents from Rogelio Santos, who served as a delivery driver when in need of assistance. (Gomez Declaration, pg. 2). Mr. Gomez further explains that he changed addresses due to mail theft. (Id.). Mr. Gomez asserts he first learned of the lawsuit and default judgment on July 3, 2026, when served with an Order for Examination. (Gomez Declaration, pg. 2).

While Mr. Gomez’ evidence that his neglect was excusable is disputed, pursuant to the holding in Purdum v. Holmes, supra, 187 Cal.App.4th 916, the Court finds that it is sufficient to support the motion to set aside the Entry of Default in light of the strong public policy in favor of trial on the merits. (New Albertsons, supra, 168 Cal.App.4th at 1419-1420.)

Based on the foregoing, the Motion is GRANTED.

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