Carlos Eduardo Portales v. Fei Gao, et al.

TENTATIVE RULINGS 6-12-26 Department R17- Judge Gilbert G. Ochoa

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CARLOS EDUARDO PORTALES CIVRS2600004

v.

FEI GAO, et al.

Motion: Motion to Set Aside Entry of Default

Movant: Defendants Fei Gao and Pingyuan Zhang

Respondent: Plaintiff Carlos Eduardo Portales (Pro Per)

I.

Discussion

A. Procedural Requirements and Timeliness

Under Code of Civil Procedure section 473, subdivision (b), a motion to set aside entry of

default for discretionary relief must be filed within “a reasonable time, in no case exceeding six

months” after the clerk’s entry of default. If there is any significant delay between discovery of

the entry of default and defendant’s filing a motion, defendant must show a reasonable excuse for

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the delay in filing the motion. (Ludka v. Memory Magnetics International (1972) 25 Cal.App.3d

316, 320). Further, the motion must be accompanied by a copy of the answer or other proposed

responsive pleading. (Code Civ. Proc., § 473, subd. (b).)

Here, the Motion was timely filed on February 27, 2026, which is just 7 days after

Defendants’ default was entered. In conjunction with the Motion, Defendants have also separately

filed a proposed demurrer on February 27, 2026.1 In opposition, Plaintiff does not argue that the

Motion was untimely filed.

B. Merits of Motion

Defendants argues that the Motion should be granted on the grounds of both discretionary

and mandatory relief under Code of Civil Procedure section 473, subdivision (b).

In general, the party moving for relief on the basis of “mistake, inadvertence, surprise, or

excusable neglect” must show specific facts demonstrating that one of these conditions was met.

(Hopkins & Carley v. Gens (2011) 200 Cal.App.4th 1401, 1410 [defendant’s burden to

demonstrate “that due to some mistake, either of fact or of law, of himself or of his counsel, or

through some inadvertence, surprise or neglect which may properly be considered excusable, the

judgment or order from which he seeks relief should be reversed” (emphasis in original; internal

quotes omitted)].)

Relief may be granted on a showing of mistake by a party or attorney. Such mistake may

be one of fact or law, but in either case, it must be material. (Weil & Brown, Cal. Practice Guide:

Civil Procedure Before Trial (The Rutter Group 2026) ¶ 5:311.) “Surprise” requires “some

condition or situation in which a party ... is unexpectedly placed to his injury, without any default

or negligence of his own, which ordinary prudence could not have guarded against.” (Baratti v.

1 Please Note: The proposed demurrer was also inadvertently set for hearing for June 12, 2026. Page | 2

Baratti (1952) 109 Cal.App.2d 917, 921.) Finally, “inadvertence” or “excusable neglect” requires

establishing the default could not have been avoided through the exercise of ordinary care. (Hearn

v. Howard (2009) 177 Cal.App.4th 1193, 1206 [holding that “the acts which brought about the

default must have been the acts of a reasonably prudent person under the same circumstances”].)

In support of the Motion, Defendant Gao testifies that she and her family, including her

mother, Defendant Zhang, resides in Unit 1 of the Property, while Plaintiff and his family reside

in Unit 2. (Gao Decl. ¶¶ 4, 6.) Defendant Gao recalls that Plaintiff’s daughter came to her house

on January 23, 2026, and handed her two sets of court papers, one for herself and another for

Defendant Zhang. (Gao Decl. ¶ 5.) However, at that time, Defendant Zhang had left for China

beginning on December 5, 2025 and did not return to the United States until February 20, 2026.

(Gao Decl. ¶ 6.)

In early February 2026, Defendants retained the Law Offices of Tony M. Lu (“Defendant’s

Counsel”) to represent them in the lawsuit. At the time, Defendant Gao informed Defendant’s

Counsel that court papers were served on her on January 23, 2026. (Gao Decl. ¶¶ 7-8; Lu Decl. ¶¶

4-5.) Given this, Defendant’s Counsel believed that the last day to file a responsive pleading for

Defendant Gao fell on February 23, 2026 and the last day to file a responsive pleading for

Defendant Zhang fell on March 4, 2026, given that she was served by substituted service. (Lu

Decl. ¶ 6.) Defendant’s Counsel solely relied on Defendant’s representations and, at the time, did

not independently confirm the service date through court records. (Lu Decl. ¶ 8.)

After reviewing the Complaint, on February 13, 2026, Defendant’s Counsel sent an email

to Plaintiff to request a telephonic meet and confer session before filing a demurrer. On February

18, 2026, Defendant’s Counsel met and conferred via telephone but were unable to reach a

resolution. Defendant’s Counsel also informed Plaintiff that Defendants would be filing a demurrer

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by February 20, 2026, and at that time, Plaintiff did not indicate that he would seek entry of default

on Defendants. (Lu Decl. ¶¶ 9-10, Exh. 1.)

On February 20, 2026, Defendant’s Counsel obtained a May 12, 2026 hearing reservation

date for a demurrer and a motion to expunge lis pendens and also served copies of those motions

on Plaintiff. (Lu Decl. ¶¶ 11, 13, Exh. 3.) Since hearing date was not obtained until February 20,

2026, and believing that Defendants had until February 23, 2026 to file the demurrer, the demurrer

was not filed until February 23, 2026. (Lu Decl. ¶¶ 12, Exh. 2.)

However, on February 24, 2026, Defendant’s Counsel discovered that their demurrer and

motion to expunge lis pendens had been rejected by the Court and that Plaintiff had requested

default to be entered against Defendants on February 20, 2026. (Lu Decl. ¶ 15.) Given this,

Defendant’s Counsel obtained copies of the Proofs of Service of Summons and the Requests to

Enter Default from the Court, and to Defendants’ surprise, Defendants discovered that Plaintiff

had allegedly personally served Defendants Gao and Zhang on January 20, 2026, and not January

23, 2026, and even though Defendant Zhang had still been in China. (Lu Decl. ¶¶ 16-17.)

Defendant’s Counsel admits that, in hindsight, he should have obtained a copy of the Proofs of

Service of Summons from the Court, rather than relying on Defendants’ recollections. (Lu Decl. ¶

18.)

In summary, Defendants seek to set aside its default on the basis that Defendants

mistakenly believed that their earliest deadline to file a responsive pleading fell on January 23,

2026.

In opposition, Plaintiff argues that Defendant Gao and Defendant’s Counsel’s respective

testimony do not establish excusable neglect because Defendants had actual knowledge of the

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lawsuit and did not act with reasonable diligence because Defendant’s Counsel admits that he did

not check court records to ascertain the service date.

However, these arguments do not demonstrate that Defendants’ mistake in regard to the

actual date of service underlying their default was, in it by itself, unreasonable. At most, there is

merely a showing of lack of due diligence.

In general, relief under Code of Civil Procedure section 473, subdivision (b), is proper

where defendant was mistaken as to some fact material to the defendant’s duty to respond, by

reason of which defendant failed to make a timely response. (Weil & Brown, Cal. Practice Guide:

Civil Procedure Before Trial (The Rutter Group 2026) ¶ 5:312.)

Here, although Defendants could have acted more diligently in ascertaining the responsive

pleading date from Plaintiff or the court records, it has been held that where the aggrieved party

makes a strong showing of diligence in seeking relief after discovery of the facts, and the other

party is unable to show prejudice from the delay, the original negligence in allowing the default to

be taken will be excused on a weak showing. (Aldrich v. San Fernando Valley Lumber Co. (1985)

170 Cal.App.3d 725, 740.) Furthermore, Plaintiff does not offer any evidence disputing Defendant

Zhang’s allegation of absence at the time of service. Here, given that service of the Summons and

Complaint was effectuated by Plaintiff’s daughter, Michelle Escobar, who is not a registered

California process server, the presumption of service under Evidence Code section 6472 does not

apply.

2 Evidence Code section 647 states that “[t]he return of a process server registered pursuant to Chapter 16 (commencing with Section 22350) of Division 8 of the Business and Professions Code upon process or notice establishes a presumption, affecting the burden of producing evidence, of the facts stated in the return.” Page | 5

Plaintiff also argues that he will suffer prejudice if the Motion is granted because he relied

on the entries of default and had prepared and filed default-judgment materials. However, Plaintiff

filed his default-judgment materials with the full knowledge that this Motion was currently

pending. (See Request for Court Judgment filed 03/02/2026.) Further, prejudice is not

demonstrated where Plaintiff’s ability to proceed and prosecute his case is not affected by the

delay.

Plaintiff also argues that Defendants cannot move under the mandatory relief provision

under Code of Civil Procedure section 473, subdivisions (b), because Defendants have failed to

file a proper attorney affidavit of fault in their Moving Papers. Plaintiff argues that Defendant’s

Counsel’s declaration is defective because it does not contain a “straightforward admission of

fault.”

In Carmel Ltd. v. Tavoussi (2009) 175 Cal.App.4th 393 (Carmel Ltd.), the Court of Appeal

held a party moving for mandatory relief from default under section 473, subdivision (b), on the

basis of attorney fault is entitled to relief where the declaration of the attorney supports a finding

of fault, even where the attorney attempts to deny fault or shift the blame to someone else. (Id. at

pp. 400-401.) The facts in the declaration take precedence over the attorney’s characterization or

opinion of what those facts show. (Ibid.) “When an attorney ‘attests to’ – that is, declares to be

true – facts demonstrating he or she was at fault, application of section 473 is not negated by the

attorney’s contrary opinion.” (Id. at p. 401.)

Here, despite not containing a “straightforward admission of fault,” Defendant’s Counsel’s

declaration is sufficient to demonstrate that he was at least partially at fault under Code of Civil

Procedure section 473, subdivision (b). Further, where an “attorney affidavit of fault” is filed, there

is no requirement that the attorney’s mistake, inadvertence, etc. be excusable. Relief must be

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granted even where the default resulted from inexcusable neglect by defendant’s attorney.

(Standard Microsystems Corp. v. Winbond Electronics Corp. (2009) 179 Cal.App.4th 868, 897,

disapproved of on other grounds by Even Zohar Construction & Remodeling, Inc. v. Bellaire

Townhouses, LLC (2015) 61 Cal.4th 830, 845.)

Therefore, the Court GRANTS the Motion and issue an order setting aside Defendants

Gao and Zhang’s default entered on February 20, 2026.

C. Costs

If relief from default is based on evidence other than an “attorney affidavit of fault,” the

court may in its discretion order the defendant to pay the costs, including attorney fees, incurred

by the plaintiff in obtaining the default judgment. (Vanderkous v. Conley (2010) 188 Cal.App.4th

111, 118.)

Further, where default is based on an “attorney affidavit of fault,” the payment of the

opposing party’s attorney fees and costs is mandatory. (Code Civ. Proc., § 473, subd. (b).)

Here, Plaintiff seeks an unspecified award of costs in the event the Motion is granted.

However, because Plaintiff has not presented any evidence that they have suffered any prejudice

as a result of Defendant’s failure to timely file a responsive pleading and also further failed to

present any evidence demonstrating how much fees and costs they have incurred, the Court

DENIES Plaintiff’s request for costs.

D. Other Conditions

Relief is authorized “upon any terms as may be just” (Code Civ. Proc., § 473, subd. (b).).

Thus, the court has authority, under appropriate circumstances, to condition relief from default.

Here, Plaintiff also requests the Court to impose the following conditions in the event the

Motion is granted:

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• Defendants to file and serve their operative responsive pleading within five (5) court days of the Court’s order; • Defendants to comply with all litigation deadlines going forward absent further order of the Court; and • An order prohibiting Defendants from engaging in self-help, retaliatory interference, lockout conduct, utility interference, or gate-access interference affecting Plaintiff’s possession or access pending further order of the Court.

jThe Court GRANTS Plaintiff’s request to require Defendants to file and serve their

responsive pleading within five (5) court days of the Court’s order, but DENY the other requests

as Plaintiff may file an appropriate motion seeking such relief.

Ruling

Based on the above, the Court rules as follows:

(1) DENY Plaintiff’s RJN Nos. 1-6 as being unnecessary;

(2) GRANT the Motion and issue an order setting aside Defendants Gao and Zhang’s

default entered on February 20, 2026;

(3) ORDER Defendants to file and serve their responsive pleading within five (5) court

days of the Court’s order; and

(4) DENY Plaintiff’s request for costs and other relief.

Movant to give notice.

Dated-

____________________________ Judge

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