Judge: Anne Hwang, Case: 21STCV42590, Date: 2024-02-05 Tentative Ruling

Case Number: 21STCV42590    Hearing Date: February 9, 2024    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely.  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

BACKGROUND

On November 17, 2021, Plaintiff Jane Doe (“Plaintiff”) filed a complaint against Defendants Tazmin James Johnson (“Defendant”) and Does 1 to 25 for sexual battery, gender violence, battery, and assault.

On September 26, 2022, default was entered against Defendant.

On May 16, 2023, the Court granted Plaintiff’s request for default judgement but denied the request for punitive damages. The Court ordered Plaintiff to submit an amended judgment form to reflect the Court’s order. (Min. Order, 5/16/23.)

On July 3, 2023, the Court granted default judgment against Defendant.

On December 28, 2023, Defendant filed the instant motion to vacate the entry of default and default judgment under Code of Civil Procedure section 473(b) and 473.5. Plaintiff opposes and Defendant replies.

The motion was heard on February 5, 2024. At the hearing, counsel for Plaintiff asserted that Defendant was barred from mandatory relief under section 473(b) pursuant to two cases not cited in Plaintiff’s opposition. Defendant objected to the untimeliness of Plaintiff’s argument. The Court overruled the objection and continued the hearing for Defendant to have time to respond.

LEGAL STANDARD

Under Code of Civil Procedure section 473(b), the Court may relieve a party from a default taken against him through his mistake, inadvertence, surprise, or excusable neglect.  This application must be filed no more than six months after entry of the order from which relief is sought, and must contain an affidavit of fault demonstrating the moving party’s mistake, inadvertence, surprise, or excusable neglect.

“The six-month time limit for granting statutory relief [under section 473(b)] is jurisdictional and the court may not consider a motion for relief made after that period has elapsed.” (Manson, Iver & York v. Black (2009) 176 Cal.App.4th 36, 42.) “The six-month period runs from entry of default, not entry of judgment.” (Id. [citing Weiss v. Blumencranc (1976) 61 Cal.App.3d 536, 541].) “The reason for the rule is that vacation of the judgment alone ordinarily would constitute an idle act; if the judgment were vacated the default would remain intact and permit immediate entry of another judgment giving the plaintiff the relief to which his complaint entitles him.” (Rutan v. Summit Sports, Inc. (1985) 173 Cal.App.3d 965, 970.) However, under the mandatory provision of section 473(b) for attorney fault, the six-month time limit runs from entry of judgment. (Sugasawara v. Newland (1994) 27 Cal.App.4th 294, 297.) If a motion based on attorney fault is timely, section 473(b) also requires the court to vacate the underlying default entered by the clerk. (Id. at 295.)

Under the mandatory provision of section 473(b), the Court shall vacate default and default judgment “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(b) [italics added].) “[F]or mandatory relief to apply the court must also satisfy itself that the default (i.e., the failure to respond) was in fact caused by attorney mistake or neglect.” (Cisneros v. Vueve (1995) 37 Cal.App.4th 906, 911 [emphasis in original].) Where the attorney did not represent defendant “at the time the default was entered, […] as a matter of law, […the attorney] was not the proximate cause of the entry of default as defined in the ‘unless clause.’ Hence, […] defendants were not entitled to relief under the attorney affidavit provisions of section 473.” (Id. at 912 [alterations added].)

Section 473.5

Under Code of Civil Procedure section 473.5, “[w]hen 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.” ¿This motion must be brought “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(a).)

¿¿ 

The focus of section 473.5 is whether the defaulting party obtained actual notice in time to defend the action.¿“Discretionary relief based upon a lack of actual notice under section 473.5 empowers a court to grant relief from a default judgment where a valid service of summons has not resulted in actual notice to a party in time to defend the action.”¿ (Anastos v. Lee (2004) 118 Cal.App.4th 1314, 1319.)¿“A party seeking relief under section 473.5 must provide an affidavit showing under oath that his or her lack of actual notice in time to defend was not caused by inexcusable neglect or avoidance of service.”¿(Ibid.; Code Civ. Proc. § 473.5(b).)¿The term “actual notice” means “genuine knowledge of the party litigant.”¿(Rosenthal v. Garner (1983) 142 Cal.App.3d 891, 895.) 

DISCUSSION

As an initial matter, here, default judgment was entered on July 3, 2023. Therefore, the deadline to file this motion based on attorney fault was January 3, 2024. Since Defendant filed this motion on December 28, 2023, it is timely. Though Plaintiff argues that the six-month limit runs from the entry of default, that rule does not apply to mandatory relief based on attorney fault. (See Sugasawara v. Newland (1994) 27 Cal.App.4th 294, 297.)  

The Declaration of Gary Jay Kaufman states that when Defendant purportedly received substitute service of the summons and complaint on August 10, 2022, his office was not yet representing Defendant. (Kaufman Decl. ¶ 8.) After default was entered against Defendant on September 26, 2022, Mr. Kaufman’s office was retained both on this civil case, and on Defendant’s other criminal matters. (Id. ¶¶ 8–9.) However, since counsel does not declare that he was representing Defendant at the time default was entered, counsel was not the proximate cause of the entry of default and therefore Defendant is not entitled to relief under the mandatory provision of section 473(b).

Regarding section 473.5, Plaintiff argues that Defendant had actual notice because he was personally served with the complaint and summons on December 4, 2021. Counsel for Defendant argues that Defendant lacks actual notice because he was not served with the statement of damages, except by substitute service. He further presents evidence that Defendant was admitted to a residential rehabilitation facility on the same day as the substitute service – August 10, 2022. The letter from the residential rehabilitation facility is dated August 10, 2022, at 4:30 p.m. (Kaufman Decl. ¶ 4, Exh. C.), while the proof of substituted service demonstrates service at 5:56 p.m.

However, neither party addresses the April 24, 2022 proof of personal service of statement of damages, which was filed with the Court on July 26, 2022.

There is no affidavit from Defendant that he did not receive actual notice in time to defend the action, given the proofs of personal service of the summons and complaint, as well as the statement of damages.[1] At most, there is evidence that Defendant was in a residential rehabilitation facility on August 10, 2022. Accordingly, Defendant has not presented sufficient evidence to support setting aside the default pursuant to section 473.5.

            Finally, although Plaintiff argues that the Court should not set aside the default on equitable grounds, this was not raised in Defendant’s motion, and therefore the Court declines to reach Plaintiff’s arguments.

CONCLUSION AND ORDER

Therefore, the Court DENIES Defendant’s Motion to Vacate the default and default judgment.

Defendant to provide notice and file a proof of service of such.