Judge Daniel M. Crowley, Case Number: 22STCV20518, Date: 2025-04-30 Tentative Ruling

All parties are urged to meet and confer with all parties concerning this tentative ruling to see if they can reach an agreed-upon resolution of their matter.  If you are able to reach an agreement, please notify the courtroom staff in advance of the hearing if you wish to submit on the tentative ruling rather than argue the motion by notifying the court by e-mailing the court at: SMCDEPT71@lacourt.org. Do not click on the email address, either copy and paste it or type it into your email. Include the word "SUBMITS" in all caps and the Case Number in the Subject line. In the body of the email, please provide the date and time of the hearing, your name, your contact information, the party you represent, and whether that party is a plaintiff, defendant, cross-complainant, cross-defendant, claimant, intervenor, or non-party, etc.

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Defendant Antonio J. Polanco’s motion to set aside/vacate default judgment is denied.

Defendant Antonio J. Polanco (“A.P.”) (“Defendant”) moves for to set aside or vacate the default judgment entered against him on May 16, 2023.

On June 23, 2022, Plaintiff Juan Elias Polanco (“J.P.”) (“Plaintiff”) filed a Complaint against Defendant and DOES 1 through 10, inclusive for: (1) Breach of Contract; (2) Quiet Title; (3) Partition; (4) Accounting; (5) Constructive Trust; and (6) Unjust Enrichment.

On September 7, 2022, the Court entered default against Defendant. On March 8, 2023, Plaintiff requested default judgment against Defendant, which was granted on May 16, 2023 in the amount of $9,511.58 consisting of $8,766.50 in attorney fees and $745.08 in costs.

On December 2, 2024, Defendant filed the instant motion to set aside/vacate default judgment. On April 17, 2025, Plaintiff filed an Opposition. No reply brief has been filed.

Pursuant to Code of Civil Procedure Section 473, subdivision (b), a court may “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.” In addition, a court must vacate a default or dismissal when a motion for relief under Section 473, subdivision (b) is filed timely and accompanied by an attorney’s sworn affidavit attesting to the attorney’s mistake, inadvertence, surprise or neglect “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).)¿¿¿

The party or the legal representative must seek such relief “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); see Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980 [“because more than six months had elapsed from the entry of default, and hence relief under section 473 was unavailable”]; People v. The North River Ins. Co. (2011) 200 Ca.App.4^th 712, 721 [motion for relief under section 473 must be brought “within a reasonable time, in no case exceeding six months”]).¿ “The six-month limit is mandatory; a court has no authority to grant relief under section 473, subdivision (b), unless an application is made within the six-month period.”¿ (Arambula v. Union Carbide Corp. (2005) 128 Cal.App.4th 333, 340, citations omitted.)¿¿¿

As a preliminary matter, the Court notes that there is no proper notice of motion, memorandum of points and authorities, and Defendant fails to cite to the legal authority he seeks relief thereunder. (Cal. Rules of Ct. rule 3.112(a).)

To the extent Defendant seeks discretionary relief under Code of Civil Procedure Section 473, subdivision (b), the Court finds that the instant motion is untimely. Default judgment was entered on May 16, 2023. (Judgment, filed 5/16/23.) As such, Defendant had until November 2023 to move to set aside/vacate default judgment.

Although Defendant contends he was not properly notified, he admits that he was aware of the pending lawsuit as early as late 2022 and as late as February 2, 2023. (Mot. 1:8-13.) Nevertheless Defendant was properly served with the Summons and Complaint. Defendant asserts he lived at 206 Milton Dr. San Gabriel, CA 91775 (Mot. at 1:7-8), which is the address where substituted service of the Summons and Complaint was effected on Co-Occupant Jacob Betts, age: 27 on July 28, 2022 at 9:25 p.m. (POS, filed 9/6/22.) Defendant does not dispute Mr. Betts was a co-occupant and the service was completed by a registered California process server, thus prima facie evidence that service was proper. (See generally, Hearn v. Howard (2009) 177 Cal.App.4th 1193.)

Accordingly, Defendant fails to meet his burden showing that relief from default judgment is appropriate.

Defendant Antonio J. Polanco’s motion to set aside/vacate default judgment is denied.

Hon. Daniel M. Crowley

Judge of the Superior Court