Motion to Set Aside Default
the SAC. The Court finds that the City’s demurrer is mooted by the filing of the SAC. Also on May 4, 2026, Plaintiff filed a Request for Dismissal as to: Kevin Orepeza, City of Shasta Lake, Shasta Lake Sherrif’s Department, and Don D. Davis. The clerk did not enter the dismissal because the form is incomplete. Plaintiff must park either 1.a.(1), or 1.a.(2) indicating whether the dismissal is with or without prejudice.
In light of the SAC not naming the City, and Plaintiff’s filing of the Request for Dismissal of the City, it appears clear to the Court that this Demurrer is moot, and the Plaintiff does not intend to proceed against the City in this action. The parties should appear today to confirm the status of the case.
MIDLAND CREDIT MANAGEMENT, INC. VS. WEBB CASE NUMBER: 26CVG-00137 Tentative Ruling on Motion to Set Aside Default: Defendant Jason Webb moves to set aside default judgment pursuant to CCP 473(b) and 473.5 on the grounds of excusable neglect and lack of actual notice.
Merits. CCP § 473(b) permits the Court to set aside a default or order entered against an aggrieved party due to mistake, surprise, inadvertence or excusable neglect. The burden is on the moving party to show that the neglect was excusable: i.e., that the default could not have been avoided through the exercise of ordinary care. Jackson v. Bank of America (1983) 141 Cal.App.3d 55, 58. “[T]he acts which brought about the default must have been the acts of a reasonably prudent person under the same circumstances.”
Id. The moving party has the burden of proof to establish one of these conditions by a preponderance of the evidence. Luz v. Lopes (1960) 55 Cal.2d 54, 62. The moving party must submit affidavits or testimony demonstrating a reasonable cause for the default. Huh v. Wang (2007) 158 Cal.App.4th 1406, 1491. CCP § 473
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CCP 473.5 provides for set aside when service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against the party in the action.
Here, Defendant has submitted sufficient evidence that his failure to file a responsive pleading was due to failure to receive actual notice. Plaintiff received timely notice of this Motion and did not file an opposition. The Court also notes that Plaintiff recently filed an Amended Proof of Personal Service of Summons, which indicates process was served April 28, 2026.
The Motion to Set Aside Default is GRANTED. The Default is VACATED. A proposed order has been lodged and will be executed. Defendant is granted ten days leave from notice of entry of order to file a responsive pleading. Note that this necessarily gives Plaintiff more than 30 days from the April 28, 2026 date of service, because this motion was pending when the Amended Proof of Service was filed and is set to be heard on June 8, 2026.
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