Judge: Andrew E. Cooper, Case: 20CHCV00816, Date: 2025-01-07 Tentative Ruling

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Case Number: 20CHCV00816    Hearing Date: January 7, 2025    Dept: F51

LOS ANGELES SUPERIOR COURT

NORTH VALLEY DISTRICT

DEPARTMENT F-51

MOTION TO VACATE/SET ASIDE DEFAULT JUDGMENT

Motion Filed: 6/11/24

MOVING PARTIES: Defendants Urbino Construction, Inc., dba Star Energy Corporation; and Rigo Delgadillo, an individual, in pro per (collectively, “Defendants”)

RESPONDING PARTY: Plaintiffs Sandy Reshes; and Karen Reshes (collectively, “Plaintiffs”)

NOTICE: NOT OK (misstates the moving party as Plaintiff)

RELIEF REQUESTED: An order vacating the default entered against Defendants on 1/25/24 and the default judgment entered against Defendants on 1/29/24.

TENTATIVE RULING: The motion is denied.

BACKGROUND

On 12/23/23, Plaintiffs filed the instant action against Defendants, alleging the following causes of action: (1) Breach of Written Contract; (2) Negligent Misrepresentation; (3) Fraudulent Business Practices Pursuant to Bus. & Prof. Code Section 17200, et sq.; and (4) Unjust Enrichment. On 4/13/21, Plaintiffs filed proofs of service stating that the complaint and summons were served on Defendants via substituted service on 3/30/21. On 8/26/22, Plaintiffs filed a proof of service stating the complaint and summons were personally served on defendant Delgadillo on 5/26/22.

On 8/26/22, the Court entered default against defendant Urbino Construction, Inc. On 11/2/22, default was entered against Delgadillo. On 5/25/23, the Court entered a default judgment against Defendants in the amount of $58,732.20. On 6/11/24, Defendants filed the instant motion. On 10/3/24, Plaintiffs filed their opposition. No reply has been filed to date.

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).)

“When service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action. The notice of motion shall be served and filed within a reasonable time, but in no event exceeding the earlier of: (i) two years after entry of a default judgment against him or her; or (ii) 180 days after service on him or her of a written notice that the default or default judgment has been entered.” (Code Civ. Proc. § 473.5, subd. (a).)

Here, Defendants argue that the address where the complaint and summons were originally served were incorrect, and therefore they lacked actual notice of the instant action until they were correctly served with the default judgment on 3/7/24. (Defs.’ Mot. 4:2–10.)

As a preliminary matter, to the extent that Defendants move for relief on the bases of mistake, inadvertence, surprise, or excusable neglect, the instant motion was not made within six months of the default judgment, despite Defendants’ assertion that the instant motion is timely. (Defs.’ Mot. 4:21–22 [“This motion is filed within a reasonable period of time, not exceeding six months after entry of the default.”].) Here, the default judgment was entered on 5/25/23, and Defendants now move for relief on 6/11/24, over one year later. Accordingly, the instant motion is untimely pursuant to Code of Civil Procedure section 473, subdivision (b).

Furthermore, to the extent that Defendants argue lack of actual notice to Delgadillo because the complaint and summons were not served to his correct address, located in San Fernando, this argument likewise lacks merit. (Id. at 4:5–8 [“Defendant did not become aware of this litigation until very recent, and that was only the default judgment was served on the Defendant on March 7th, 2024. Only the very last service list served on March 7th, 2024 provided the correct San Fernando address.”].) The Court record shows that Delgadillo was personally served with the complaint and summons at this “correct San Fernando address” on 5/26/22 at 5:53pm. (8/26/22 POS.)

Based on the foregoing, the Court finds no basis to grant Defendants relief from the default judgment entered against them on 5/25/23. Accordingly, the motion is denied.

CONCLUSION

The motion is denied.