Motion to Set Aside/Vacate Default and Judgment
(7) A significant, unanticipated change in the status of the case as a result of which the case is not ready for trial.” (Cal. Rules of Court, rule 3.1332, subd. (c).)
Other factors to consider include: “(1) [t]he proximity of the trial date; (2) [w]hether there was any previous continuance, extension of time, or delay of trial due to any party; (3) [t]he length of the continuance requested; (4) [t]he availability of alternative means to address the problem that gave rise to the motion or application for a continuance; (5) [t]he prejudice that parties or witnesses will suffer as a result of the continuance; (6) [i]f the case is entitled to a preferential trial setting, the reasons for that status and whether the need for a continuance outweighs the need to avoid delay; (7) [t]he court’s calendar and the impact of granting a continuance on other pending trials; (8) [w]hether trial counsel is engaged in another trial; (9) [w]hether all parties have stipulated to a continuance; (10) [w]hether the interests of justice are best served by a continuance, by the trial of the matter, or by imposing conditions on the continuance; and (11) [a]ny other fact or circumstance relevant to the fair determination of the motion or application.” (Cal. Rules of Court, rule 3.1332, subd. (d).)
Here, the Court finds that the factors weigh in favor of continuing trial. Defendant seeks to substitute trial counsel. This substitution is required in furtherance of justice because Defendant will now be represented by counsel instead of proceeding in pro per and will be better position to prepare her defense. The requested continuance is reasonable as Defendant is only requesting a 3-5 month continuance. Defendant states that she needs to conduct additional discovery in order to prepare her case for trial.
The Court finds that the 3-5 month continuance will sufficiently allow Defendant to conduct the requisite discovery, especially because this is a straightforward breach of guaranty action. The Court acknowledges that Defendant had two years to retain counsel and only now seeks to retain counsel as trial is approaching. Still, the continuance is short and therefore the Court finds any prejudice Plaintiff may experience by this short delay is minimal and not sufficiently consequential to bar the continuance.
The Motion is GRANTED.
Trial is CONTINUED to September 14, 2026 at 9:00 am in c34. All discovery and pretrial dates shall be calculated from the new trial date.
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Moving party to give notice.
3. 30-2025-01475801 1. Motion to Set Aside/Vacate Default and Judgment
Mercury Insurance Defendant, Aracely Leon-Cabral “ESA Aracely Leon Cabral” (“Leon-Cabral”), in pro per, Company vs. Cabral moves for an order setting aside the entry of default and/or default judgment entered against Defendant on August 21, 2025.
On April 6, 2026, the Court continued the instant motion to set aside and ordered Defendant Leon-Cabral to file and serve a copy of her proposed answer no later than May 21, 2026. (ROA 47.) Defendant Leon-Cabral filed and served a copy of her Answer as ordered. (See ROA 49.)
The Answer filed on May 21, 2026, is deemed filed on that date.
The Court GRANTS Defendant Leon-Cabral’s motion to set aside the entry of default and default judgment as set forth in the Court’s April 6, 2026, Minute Order which is incorporated herein and set forth below, in relevant part.
No opposition has been filed.
Code of Civil Procedure section 473(b) states:
The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her 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.
“The motion for relief must be made within six months after entry of the default, and the party moving to set aside the default has the burden of showing good cause for relief. [Citation.]” (Shapell Socal Rental Properties, LLC v. Chico’s FAS, Inc. (2022) 85 Cal.App.5th 198, 212 (“Shapell”).) “The provisions of section 473 . . . are to be liberally construed and sound policy favors the determination of actions on their merits. [Citation.] [Citation.]” (Ibid., quotations omitted.].)
“ ‘[A] party who seeks relief under [section 473] must make a showing that due to some mistake, either of fact or of law, of himself [or herself] or of his [or her] counsel, or through some inadvertence, surprise or neglect which may properly be considered excusable, the judgment or order from which he [or she] seeks relief should be reversed. In other words, a burden is imposed upon the party seeking relief to show why he [or she] is entitled to it, and the assumption of this burden necessarily requires the production of evidence. [Citations.]’ ” (Kendall v.
Barker (1988) 197 Cal.App.3d 619, 623-624.) In a motion under section 473, the initial burden is on the moving party to prove inadvertence, surprise, excusable neglect or mistake by a “preponderance of the evidence.” (Id. at p. 624.) “The moving party has a double burden: He must show a satisfactory excuse for his default, and he must show diligence in making the motion after discovery of the default. [Citation.]” (Huh v. Wang (2007) 158 Cal.App.4th 1406, 1420, internal quotations omitted.) Whether the moving party has successfully carried this burden is a question entrusted to the discretion of the trial court and its ruling will not be disturbed in the absence of a demonstrated abuse of that discretion. (Hopkins & Carley v.
Gens (2011) 200 Cal. App. 4th 1401, 1410.)
“ ‘ “Section 473 is often applied liberally where the party in default moves promptly to seek relief, and the party opposing the motion will not suffer prejudice if relief is granted. [Citations.] In such situations ‘very slight evidence will be required to justify a court in setting aside the default.’ [Citations.] [¶] Moreover, because the law strongly favors trial and disposition on the merits, any doubts in applying section 473 must be resolved in favor of the party seeking relief from default . . . .” ’ [Citation.]” (Kramer v. Traditional Escrow, Inc. (2020) 56 Cal.App.5th 13, 28.)
Here, default was entered on August 21, 2025, and Plaintiff filed the instant motion to set aside on September 18, 2025, promptly after learning of the default on September 3, 2025. (Declaration of Aracely Leon-Cabral, ¶¶ 4, 7.) Therefore, it is timely brought.
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 section 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.)
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 1. Application/Request
McNelis vs. Volkswagon Defendants Volkswagen Group of America, Inc. and Unstoppable Automative AMV, LLC Group of America, Inc dba Audi Mission Viejo (“Defendants”) apply to this Court for an order setting 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).