Miriam Castaneda v. Thomas M. Emeterio

Case Number

24CV05243

Case Type

Hearing Date / Time

Wed, 08/20/2025 - 10:00

Nature of Proceedings

Defendant Thomas M. Emeterio’s Motion to Set Aside Default and Default Judgment

Tentative Ruling

For Plaintiff Miriam Castaneda: Christian M. Bosuel.

For Defendant Thomas M. Emeterio: Jennifer T. Tseng, H. Daniel Burrows, E. Richard McGuire, Tseng & Associates.

                     

RULING

For the reasons set forth herein: Defendant’s motion to set aside default and vacate default judgment is granted.

Background

This action commenced on September 20, 2024, by the filing of the complaint by Plaintiff Miriam Castaneda against Defendant Thomas M. Emeterio for personal injury and property damage related to a December 4, 2023, motor vehicle accident on De la Vina Street, at the intersection with Mission Street, in Santa Barbara.

Plaintiff has filed two proofs of personal service of the summons and complaint, reflecting that they were served on Defendant December 4, 2024, and February 28, 2025. By way of declaration, Plaintiff’s counsel declares that Defendant was also served on January 24, 2025. (Bosuel Decl., ¶ 2 & Exh. B.) [Note: Exhibit B does not reflect what Plaintiff’s counsel declares it to show. It is a proof of service for December 4, 2024.]

Having received no answer to the complaint, on February 26, 2025, Plaintiff filed a request for entry of default which was entered as requested. On April 3, 2025, having considered Plaintiff’s written declaration pursuant to Code of Civil Procedure section 585, subdivision (d), the Court entered default judgment in favor of Plaintiff and against Defendant in the amount of $94,466.00.

Defendant now moves to set aside the default and default judgment pursuant to Code of Civil Procedure section 473, based on defense counsel’s affidavit of fault.

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. . . . Notwithstanding any other requirements of this section, the Court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the Court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.” (Code Civ. Proc., § 473, subd. (b), italics added.)

The motion is 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.)

“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.)

 

By way of the attorney affidavit of fault, counsel declares:

“On March 18, 2025, Tseng & Associates received an email from State Farm requesting representation for their insured, Thomas M. Emeterio. Within the file contents was a summons and complaint dated September 24, 2024, and a request for entry of default dated February 24, 2025.”

“I spoke to Plaintiff’s counsel, Christian Bosuel, on the date I received the file, March 18, 2025. I identified myself and the firm and sought an agreement to stipulate to setting aside the request for default and allow an answer to be filed. He expressed frustration with the insurance company’s handling of the matter and told me the only way he would change his position was if he received an offer.”

“I evaluated the file contents and discovered that Plaintiff’s medical bills only totaled $300,00. After speaking to the insurance company, I was authorized to extend an offer of $5,000.00.”

“Approximately three months later, on June 24, 2025, I spoke with Plaintiff’s counsel and extended an offer of $5,000.00. I again asked him to stipulate to setting aside the new default judgment now that he had an offer. He indicated my offer was unreasonable especially since he was now holding a default judgment against my client.”

“I made several mistakes in this matter. First, I should have secured Plaintiff’s willingness to change positions in writing. Second, I allowed an inordinate amount of time to pass between my

initial contact with Plaintiff’s counsel and the offer. My client should not suffer due to my neglect.”

Although Plaintiff disputes some of the statements contained in the declaration, defense counsel has provided an adequate affidavit of fault.

“When a complying affidavit is filed relief is mandatory, even if the attorney’s neglect was inexcusable. [Citation.]” (Bailey v. Citibank, N.A. (2021) 66 Cal.App.5th 335, 349.)

The motion to set aside default and vacate default judgment will be granted.