Motion to Set Aside/Vacate Default and Default Judgment (CCP 473.5); Motion for Relief from Default pursuant to CCP § 473(b)
25CV116958: CARPENTER vs JOSIE, et al. 05/26/2026 Hearing on Motion to Set Aside/Vacate Default and Default Judgment (CCP 473.5) CRS# 983215396574 in Department 512
Tentative Ruling - 05/21/2026 Jenna Whitman
The Motion to Set Aside/Vacate Default filed by Andrew Josey on 02/05/2026 is Denied.
Defendant Andrew Josies (Defendant) Motion for Relief from Default pursuant to CCP § 473(b) is DENIED.
Plaintiff Erwin Carpenter alleges that after church services in West Oakland on 1/1/2023, Defendant, an associate minister at the church, battered Plaintiff.
RELEVANT FACTS
Plaintiff filed his lawsuit on 3/26/2025. Plaintiff filed a sworn proof of service on 6/4/2025, declaring that Defendant was personally served with process at an address in Pittsburg, California on 5/2/2025. Defendant does not contest that he was duly served with process on that date. Defendant failed to timely file an Answer, and on 6/5/2025, Plaintiff requested to take Defendants default. Defendants default entered on 6/11/2025.
On 12/11/2025, Defendant filed a Motion for Relief from Default along with an application for a fee waiver of the initial appearance filing fee. This Court denied Defendants fee waiver request on 12/16/2025 and served a copy of the Order on Defendant by mail. Defendant did not promptly seek to tender the required filing fee for the Motion, renew his application for fee waiver or request a hearing on his initial fee waiver application, and on 1/5/2026, the Clerk of the Court served a Notice of Voiding of Filing on Plaintiff and Defendant.
ANALYSIS OF MOTION FOR RELIEF FROM DEFAULT
Defendant moves for relief from default on the grounds of excusable negligent pursuant to CCP § 473(b). CCP § 473(b) provides in relevant part:
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The court may, upon any terms as may be just, relieve a party or the partys legal representative from a judgment, dismissal, order, or other proceeding taken against the party through the partys mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.
Although the general underlying purpose of section 473(b) is to promote the determination of actions on their merits, the six-month limitation to seek relief from default for excusable neglect is jurisdictional, such that the Court has no power to grant relief under section 473 once the time has lapsed. (Austin v. Los Angeles USD (2016) 244 Cal.App.4th 918, 928.) 25CV116958: CARPENTER vs JOSIE, et al. 05/26/2026 Hearing on Motion to Set Aside/Vacate Default and Default Judgment (CCP 473.5) CRS# 983215396574 in Department 512
Here, Defendant filed his 12/11/2025 Motion for Relief from Default on the last day within the six-month period to file such a motion. Thus, that motion was timely, and Defendant was also entitled to request a fee waiver. However, once the Court denied Plaintiffs application for fee waiver on 12/16/2025, Defendant had ten days (plus five calendar days for service of the denial order by first class postal mail to Defendant on 12/16/2025) to pay the filing fee or take other appropriate actions. Government Code § 68634(g) unambiguously provides:
If an application [for a fee waiver] is denied in whole or in part, the applicant shall pay the court fees and costs that ordinarily would be charged, or make the partial payment as ordered by the court, within 10 days after the clerk gives notice of the denial, unless within that time the applicant submits a new application or requests a hearing under subdivision (e). If the applicant does not pay on time, the clerk shall void the papers that were filed without payment of the court fees and costs.
Defendant did not comply with the requirements of § 68634(g), and on 1/5/2026, the Court voided his initial Motion. Defendant refiled his Motion for Relief from Default and a second Application for Fee Waiver on 2/5/2026, which was granted by the Court. However, this second Fee Waiver Application was untimely under § 68634(g).
Once the timely initial 12/11/2025 Motion for Relief from Default was properly voided by the Court on 1/5/2026, any subsequently filed papers were untimely, and the Court no longer had jurisdiction to grant Defendant the relief he now seeks. Although the results are somewhat harsh in these circumstances, the Court has no discretion to set aside the unambiguous statutory requirements. Further, although in pro per litigants have the right to represent themselves, they are legally bound to the same statutory and procedural requirements as parties represented by professional legal counsel. (Kabbe v. Miller (1990) 226 Cal.App.3d 93, 98; Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1247; see also People v. Clark (1990) 50 Cal.3d 583, 625.)
CONTESTING TENTATIVE RULINGS
PLEASE NOTE: If any party contests the tentative ruling, the hearing on the motion will occur remotely via the court's own video-conferencing system.
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 date.
To contest a tentative ruling, a party should do the following:
First, the party must notify Department 512, by email at Dept512@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.
SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA
25CV116958: CARPENTER vs JOSIE, et al. 05/26/2026 Hearing on Motion to Set Aside/Vacate Default and Default Judgment (CCP 473.5) CRS# 983215396574 in Department 512
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."
Parties may appear via videoconference, using the Zoom.com website or application.
TO CONNECT TO ZOOM:
Join the meeting using the following link: https://www.zoomgov.com/j/16057661931 Join the meeting by Phone:
Meeting ID: 160 5766 1931
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