Discover Bank vs Adam C Feller

Case Number

24CV01843

Case Type

Hearing Date / Time

Mon, 09/30/2024 - 10:00

Nature of Proceedings

Motion: Set Aside and Vacate Judgment

Tentative Ruling

Discover Bank v. Adam C. Feller                      

Case No. 24CV01843

           

Hearing Date: September 30, 2024                                       

HEARING:              Defendant Adam C. Feller’s Motion to Set Aside Entry of Default and Vacate Judgment

ATTORNEYS:        For Plaintiff Discover Bank: Christine Siduguen, The Moore  Law Group

                                    For Defendant Adam C. Feller: Self-Represented                  

TENTATIVE RULING:

The motion to set aside entry of default and vacate judgment is granted. Defendant Adam C. Feller shall separately file and serve his answer to plaintiff’s complaint no later than October 11, 2024, and pay any required filing fee.

Background:

This action commenced on April 2, 2024, by the filing of the complaint by plaintiff Discover Bank (“plaintiff”) against defendant Adam C. Feller (“defendant”) for common counts in the amount of $10,323.18, due on a credit card issued to defendant by plaintiff.

On May 24, 2024, defendant filed his answer to the complaint but did not submit his initial filing fee. Rather, he filed a request to waive court fees. On May 28, 2024, the request to waive court fees was denied and defendant was given 10-days after notice of the order to pay the filing fee. Defendant failed to pay his filing fee timely and on June 24, 2024, pursuant to California Rules of Court, rule 3.50 et seq., the answer was deemed ineffective and vacated.

On July 24, 2024, defendant’s default was taken, and judgment was entered.

On August 1, 2024, defendant filed the present motion seeking to set aside the default, vacate judgment, and stay execution.

According to the proof of service, the motion was served via mail on August 1, 2024. Plaintiff has not filed opposition or any other responsive document to 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 it was just over one week between the entry of default and the filing of the present motion. Hence, defendant’s motion was timely filed.

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, following the rejection of his request for fee waiver, he was unaware that the filing fees were not paid because he was out of town and did not realize he needed to request a continuance. Given that defendant attempted to file an answer, and that he promptly moved to set aside the default, the court will find that the failure to pay his initial filing fee was the result of 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.)

 

“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.) There is no showing of prejudice to plaintiff.

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