Jeffrey Capra vs Kevin Witherell

Case Number

23CV02161

Case Type

Hearing Date / Time

Fri, 04/05/2024 - 10:00

Nature of Proceedings

Motion: Set Aside

Tentative Ruling

The motion to set aside entry of default is granted. Defendant Kevin Witherell shall separately file and serve his answer to plaintiff’s complaint no later than April 12, 2024.

Background:

This action commenced on May 18, 2023, by the filing of the complaint by plaintiff Jeffrey Capra against defendant Kevin Witherell for assault, battery, intentional infliction of emotional distress, and negligence.

As alleged in the complaint: On May 19, 2022, at 20 Winchester Canyon Road, Goleta, plaintiff was approached by defendant, who is taller and heavier than plaintiff, wherein an argument ensued, and defendant picked plaintiff up and dropped him to the floor causing injuries. (Complaint, ¶ 4.)

Defendant was served with the summons and complaint on July 7, 2023.

Defendant was served with a statement of damages on July 28, 2023.

Having received no answer to the complaint, plaintiff moved for default which was entered on August 29, 2023.

Defendant now moves to set aside the entry of default arguing that the default was the result of mistake, inadvertence, surprise, or excusable neglect. The motion was filed on January 29, 2024.

Plaintiff opposes the motion.

Analysis:

“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.” (Code Civ. Proc., § 473, subd. (b).)

Here, a copy of defendant’s proposed answer accompanies the motion and six months did not pass between the entry of default and the filing of the present motion. Hence, defendant’s motion was filed prior to expiration of the maximum time allowed under the statute.

The trial court has broad discretion to vacate the judgment and/or the clerk’s entry of default that preceded it.  However, “this discretion may be exercised only after the party seeking relief has shown that there is a proper ground for relief, and that the party has raised that ground in a procedurally proper manner, within any applicable time limits.” (Cruz v. Fagor America, Inc. (2007) 146 Cal.App.4th 488,

495.)

Unless the motion to set aside default is accompanied by an attorney affidavit of fault, which is not the case here, relief is discretionary, and the burden is on defendant to demonstrate mistake, inadvertence, surprise, or excusable neglect. (See Lorenz v. Commercial Accept. Ins. Co. (1995) 40 Cal.App.4th 981, 989.) 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 declares that at the time he was served with the summons and complaint his life was “quite chaotic.” (Witherell Dec., ¶ 3.) He had just completed sentencing in the related criminal matter and had approximately two weeks remaining until he began to serve his sentence under house arrest. (Ibid.) Defendant was “helping a friend prepare his house for his pregnant wife to move, as well as working on a critical home repair project of [his] own.” (Ibid.) Defendant did not believe he would be able to complete necessary repairs during house arrest because it would not be possible to make frequent trips to a hardware store to obtain supplies. (Ibid.) During that time, defendant “was under a lot of pressure to work quickly and suffered extreme stress compounded by depression as a result of the related ongoing criminal proceedings.” (Witherell Dec., ¶ 4.) Defendant “was too distraught by the result of the criminal case to think about the complaint.” (Ibid.)

When he received and reviewed the summons and complaint, defendant “found it exceedingly difficult to focus” on other aspects of his life. (Witherell Dec., ¶ 5.) Because of the Notice of Case Management Conference that was served along with the summons and complaint, defendant believed that he had until that date, September 15, 2023, to retain an attorney. (Ibid.)

After his house arrest ended on August 16, 2023, defendant consulted with three attorneys about responding to the lawsuit but none of them informed him that the deadline to respond had already passed. (Witherell Dec., ¶ 6.) When he received the request for entry of default on August 30, 2023, defendant again sought legal advice and was advised to submit an insurance claim to his homeowner insurance carrier. (Ibid.) Defendant submitted the claim to his insurance carrier the first week of September 2023, and followed up on three separate occasions but was told the claim was under review by the carrier’s legal department. (Witherell Dec., ¶ 7.) In late October, defendant learned that the insurance claim was denied and that he would need to hire an attorney on his own. (Ibid.)

“My failure to respond to the complaint within thirty days of service of the summons was the combined result of reliance on discussions with attorneys, the expectation that my insurance carrier would handle the case, my mistake of interpreting the case management conference date as the next significant date in the lawsuit and inadvertently failing to notice the 30-day notice indicated on the summons, my emotional distress and anxiety from the related criminal matter, necessary home repairs, obligations to family and friends, employment responsibilities, and limitations during my house arrest. Under these circumstances, I believed I acted reasonably in seeking the advice of multiple attorneys and diligently tendering defense of this matter to my insurance carrier after receiving notice that default was entered.” (Witherell Dec., ¶ 9.)

The court notes that defendant did appear at the September 15, 2023, case management conference.

Plaintiff’s primary argument is that defendant filed the present motion five months after being served with the request to enter default and, as such, the motion was not made within a reasonable time. In support, plaintiff cites several cases, including Benjamin v. Dalmo Mfg. Co. (1948) 31 Cal.2d 523 (Benjamin) and Minick v. City of Petaluma (2016) 3 Cal.App.5th 15 (Minick), for the proposition that a three-month delay (or longer), in bringing a motion to set aside default, is unreasonable. While that is one factor the court may look at in ruling on a motion pursuant to Code of Civil Procedure section 473, there are other factors to consider.

In Benjamin, upon learning of the default, and promptly forwarding the process papers to defendants attorney, “no action was taken to open the default for a period of more than three months. So far as the record discloses, defendant furnished no explanation in the trial court, either by affidavit or testimony, for its dilatory procedure.” (Benjamin, supra, at p. 528.) “[T]he proper procedure appears to involve the presentation of some explanation, by affidavit or testimony, of any extended delay, and the court then determines whether such explanation may be deemed sufficient to justify the granting of the relief sought.” (Id. at. p. 529.)

Minick actually supports defendant’s argument rather than plaintiff’s. In that case, the default was set aside. “A delay is unreasonable as a matter of law only when it exceeds three months and there is no evidence to explain the delay.” (Minick, supra, at p. 34, italics added.)

The other cases cited by plaintiff are likewise all distinguishable from the present case. Here, there were a number of interrelated things that took place, as set forth above, that defendant claims resulted in mistakes of fact, mistakes of law, and excusable neglect.

While each of defendant’s stated reasons for not timely answering the complaint, and failing to move to set aside the default at an earlier date, would by themselves likely be insufficient to grant his motion, the reasons taken as a whole establish, to the courts satisfaction, that the failures were due to mistake and excusable neglect.

“The law favors judgments based on the merits, not procedural missteps. Our Supreme Court has repeatedly reminded us that in this area doubts must be resolved in favor of relief, with an order denying relief scrutinized more carefully than an order granting it. As Justice Mosk put it in Rappleyea, “ ‘Because 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 [citations]. Therefore, a trial court order denying relief is scrutinized more carefully than an order permitting trial on the merits.” ’ [Citations.]” (Lasalle v. Vogel (2019) 36 Cal.App.5th 127, 134-135.)

Additionally, plaintiff has made no showing that he would be prejudiced by a trial on the merits.

“Where there is no showing the party opposing the motion to vacate the judgment “ ’ ‘has suffered any prejudice or that injustice will result from the trial of the case upon its merits, very slight evidence will be required to justify a court in setting aside the default.” ’ [Citation.]” (Buckert v. Briggs (1971) 15 Cal.App.3d 296, 302-303.)

Defendant’s motion to set aside entry of default will be granted.