Superior Court of Ventura County (California)

Defendant sellers appealed from an order of the Superior Court of Ventura County (California), which denied defendants' motion to set aside an entry of default and a judgment predicated in plaintiff buyer's action for breach of contract and fraud.

A default and judgment awarding plaintiff buyer damages was entered against defendant sellers in plaintiff's action for breach of contract and fraud after defendants failed to enter an appearance in the action. Defendants' motion to set aside the defaults and the default judgment rendered against them was denied by the trial court and defendants appealed. The crime of Inciting a Riot requires a prosecutor to prove the following elements: The defendant committed an act or engaged in conduct that encouraged a riot or urged others to commit acts of force or violence or to burn or destroy property. On appeal, the court affirmed. The court found that there was jurisdiction to entertain defendants' motion for relief under Cal. Civ. Proc. Code § 473 because defendants' motion was timely filed § 473 as it was filed before midnight on the 182nd day after the entry of default. The court held, however, that relief should be denied to defendants because their failure to file an appearance prior to the expiration of the time permitted by law was inexcusable as defendants' conduct in permitting the matter to go to default was not the result of mistake, inadvertence, or surprise, but solely the consequence of neglect.

The court affirmed the order denying defendant sellers' motion to set aside default and default judgment because defendants' failure to file an appearance in plaintiff buyer's breach of contract and fraud action was solely the result of defendants' neglect and was, therefore, inexcusable.