Defendant’s Motion to Set Aside and Vacate Default
TENTATIVE RULING(S) FOR June 3, 2026 Department S37 – Judge Winston Keh This court follows California Rules of Court, rule 3.1308(b) for tentative rulings. (See San Bernardino Superior Court Local Emergency Rule 8.) Tentative rulings for each law & motion will be posted on the internet (https://www.sb-court.org) by 3:00 p.m. on the court day immediately before the hearing.
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UNLESS OTHERWISE NOTED, THE PREVAILING PARTY IS TO GIVE NOTICE OF THE
RULING.
Uribe vs Sanchez
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TENTATIVE RULING(S):
Before the Court is Defendant’s Motion to Set Aside and Vacate Default Filed on July 22,
2025 (Motion), supported by a declaration from Sergio Rodriguez (Rodriguez). On May 20,
2026, Plaintiff filed his Opposition to the Motion (Opposition). No reply has been filed as of 8:35
am on June 2, 2026.
The Merits of Defendant’s Motion
Defendant motions for the court to set aside the default entered on July 22, 2025 pursuant to
section 473, subdivision (b) of the Code of Civil Procedure. Defendant contends he is entitled to
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the subject relief as default was entered without the Plaintiff's counsel providing proper notice to
Defendant. Further, Defendant contends Plaintiff’s counsel acknowledged that he received
Defendant’s Answer and failed to inform Defendant’s counsel of his intent to file a request to
enter default. Citing LaSalle v. Vogel (2019) 36 Cal.App.5th 127 (LaSalle), Defendant argues
Plaintiff’s failure to provide notice to Defendant’s counsel, especially when the Plaintiff was
aware of his representation, can be considered as bad faith and a violation of professional
courtesy that undermines due process. Defendant further argues relief is appropriate here as
default was due to surprise or excusable neglect and cites to authority that indicates public policy
strongly favors the court exercising its discretion in favor of granting relief.
In his Opposition, Plaintiff argues Defendant does not qualify for relief under Code of Civil
Procedure sections 473 and 473.5 and there is no basis for equitable relief. Citing Manson, Iver
& York v. Black (2009) 176 Cal.App.4th 36, Defendant argues relief is not available under
section 473 as while the instant Motion was filed on filed on January 21, 2026, the last day of the
six-month period following Plaintiff’s entry of default, Defendant failed to pay the filing fee at the
time he filed his Motion. Citing cases such as Duran v. St. Luke’s Hospital (2003) 114
Cal.App.4th 457, Plaintiff argues it is mandatory for court clerks to demand and receive the fee
required by statute before documents or pleadings are filed. Plaintiff further contends Defendant
is not eligible for relief under section 473.5 as Defendant was properly served with the Summons
in this action. Finally, Plaintiff argues Defendant’s reliance on LaSalle is misplaced as the
defendant in LaSalle filed her motion to set aside within the six-month period prescribed by Code
of Civil Procedure section 473. Plaintiff contends on July 22, 2025, counsel informed
Defendant’s counsel that an internal review of Plaintiff’s case file had revealed that Defendant
had not filed an Answer to the Complaint, and that Plaintiff would be filing a request for entry of
default. Further, Plaintiff filed and served a Request for Entry of Default with a Proof of Service
attesting to the fact that the document was served. As for Defendant’s contention that Plaintiff’s
counsel previously represented that they received an Answer from the Defendant, Plaintiff’s
counsel explained this was an error and counsel had confused Defendant’s motion to stay as an
Answer.
Under section 473, subdivision (b), the court may relieve a party or his representative
from a dismissal taken against him due to mistake, inadvertence, surprise, or excusable neglect.
(Code Civ. Proc., § 473, subd. (b).) Defendant argues relief should be granted on the grounds of
surprise or excusable neglect. As set forth in Rodrguez’s declaration filed in support of the
instant Motion, Defendant was unaware the subject default had been entered against him and
attempted to file an Answer on July 25, 2025.
When the defaulting party moves promptly to seek relief and the opponent to such request has
or will suffer little prejudice, very slight evidence is required to justify setting aside a default.
(Ibid.; Shamblin v. Brattain (1988) 44 Cal.3d 474, 478.) Here, the instant Motion reflects the
timely filing of the instant Motion on January 21, 2026. Plaintiff submits no evidence to support
his contention that the instant Motion was not timely filed. The court docket reflects that a motion
to vacate judgment was rejected by the clerk due to a failure to pay first appearance fees, but
the instant Motion reflects a filing date of January 21, 2026. Given the instant Motion was timely
filed and Plaintiff fails to show it will suffer any prejudice, the Court finds Defendant has provided
the requisite “slight evidence” to support granting the instant Motion.
RULING
Based on the foregoing analysis, the Court rules as follows:
(1) Grants Defendant’s Motion and deems the proposed Answer as filed and served as of
June 3, 2026.
(2) Vacates OSC re Default Prove Up
Given the age of this case, the Court intends to conduct a Trial Setting Conference after the
hearing on this motion.