Application/Request
As noted above, 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, and where a party seeking relief makes a strong showing of diligence in seeking relief after discovery of the facts, and the opposing party is unable to show prejudice from the delay, the negligence in allowing the default to be taken will be excused on a weak showing.
Defendant, Aracely Leon-Cabral (“Leon -Cabral”), has made a showing of diligence in seeking relief after discovery of the default as she promptly filed the instant motion on September 18, 2025, after learning of the default on September 3, 2025. There is no opposition, and it seems unlikely that there is prejudice since there was little delay and the case is still in the early stages. Plaintiff has just proceeded by default. Thus, Defendant Leon- Cabral need only make a weak showing of mistake, inadvertence, and/or excusable neglect.
“[A]s for inadvertence or neglect, ‘[t]o warrant relief under sect ion 473 a litigant’s neglect must have been such as might have been the act of a reasonably prudent person under the same circumstances . . . It is the duty of every party desiring to resist an action or to participate in a judicial proceeding to take timely and adequate steps to retain counsel or act in his own person to avoid an undesirable judgment. Unless in arranging for his defense he shows that he has exercised such reasonable diligence as a man of ordinary prudence usually bestows upon important business his motion for relief under section 473 will be denied. [Citation.]
Courts neither act as guardians for incompetent parties nor for those who are grossly careless of their own affairs . . . . The only occasion for the application of section 473 is where a party is unexpectedly placed in a situation to his injury without fault or negligence of his own and against which ordinary prudence could not have guarded.’ [Citation.]” (Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1206.)
Defendant Leon-Cabral provides that on or about June 15, 2025, Defendant was served with a summons and complaint and states: “At that time, I did not understand the summons or the legal terminology contained in it. I mistakenly believed that I didn’t need to file a response right away, and/or that I would have the opportunity to address the matter in person at a later date.” (Declaration of Aracely Leon -Cabral, ¶ 2.) Defendant also states: “Because of my misunderstanding, and due to the fact that I have no legal training or knowledge of court procedures, I failed to file a timely response to the Complaint,” and that the failure to respond was “the result of my lack of understanding of the process and legal terms used in summons.” (Id., ¶¶ 3, 5.)
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The Court finds that Defendant Leon-Cabral has made a showing of diligence in bringing the instant motion and a sufficient showing of inadvertence and/or excusable neglect to set aside the entry of default and subsequent entry of default judgment on December 2, 2025 (ROA 32).
The Court orders clerk to give notice.
4. 30-2024-01396557
McNelis vs. Volkswagon Group of America, Inc 1. Application/Request
Defendants Volkswagen Group of America, Inc. and Unstoppable Automative AMV, LLC dba Audi Mission Viejo (“Defendants”) apply to this Court for an order setti ng aside the settlement entered into with plaintiffs Brooke McNelis and Patrick Michael Daly (“Plaintiffs”) and/or relief from entry of judgment on Defendants’ statutory offer pursuant to Code of Civil Procedure section 473(b).
Defendants argue that their statutory 998 Offer contains a typographical error regarding the amount that they agreed to pay. They argue that relief is warranted under Code of Civil Procedure section 473(b) due to this excusable mistake.
On October 9, 2025, this Court denied Defendants’ ex parte application to set aside the parties’ settlement. The Court ruled that Defendants were not diligent in seeking relief, as they failed to do anything about correcting the claimed error after Plaintiffs filed their Motion to Enforce Settlement on July 21, 2025 until October 6, 2025. Defendants admitted in the application that they were aware of the error as early as May 22, 2025 and still did nothing until their ex parte application was filed on October 6, 2026.
Defendants again argue that the error in the 998 Offer was due to an internal case transfer. However, the counsel who signed the 998 Offer also appears on the caption page of the moving papers and is the same counsel who has submitted a declaration in support of the instant motion. Therefore, as it did with regard to the ex parte application, the Court rejects this argument.
The mandatory relief provision of Code of Civil Procedure section 473(b) provides: “Notwithstanding any other requirements of this section, the court shall, whenev er an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to the attorney’s mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against the attorney’s client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against the attorney’s client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.”
This provi sion does not apply here, where no default or default judgment or dismissal has been entered against Defendants. (See Martin Potts & Associates, Inc. v. Corsair, LLC (2016) 244 Cal.App.4th 432, 438 [“mandatory relief provision is narrower in scope insofar as it is only available for defaults, default judgments, and dismissals”].)
Defendants alternatively argue that relief is warranted even if the mandatory provision does not apply due to their counsel’s excusable mistake.
“The court may, upon any terms as may be just, relieve a party or the party’s legal representative from a judgment, dismissal, order, or other proceeding taken against the party through the party’s mistake, inadvertence, surprise, or excusable neglect. Application for this relief . . . shall be made within a reasonable time, in no case exceeding six months, after the judgment dismissal, order, or proceeding was taken.” (Code Civ. Proc., § 473(b).)
It is not clear whether the 998 Offer constitutes a “proceeding” taken against Defendants. Even assuming it does, the 998 Offer was accepted by Plaintiffs on March 19, 2025 and Defendants therefore had until September 19, 2025 to bring an application for relief under section 473(b). They did not file the instant application until October 17, 2025. A party seeking discretionary relief under section 473 must act diligently. (Huh v. Wang (2007) 158 Cal.App.4th 1406, 1419.) Defendants have failed to act diligently here. Thus, they are not entitled to relief under the discretionary provisions of section 473(b).
In light of the above, the application for relief is DENIED. Defendants to give notice.