Judge: David A. Rosen, Case: 20GDCV00960, Date: 2023-02-03 Tentative Ruling
Case Number: 20GDCV00960 Hearing Date: February 3, 2023 Dept: E
Hearing Date: 02/03/2023 – 9:00am
Case No. 20GDCV00960
Trial Date: N/A
Case Name: ABSOLUTE RESOLUTIONS INVESTMENTS, LLC v. GRIGOR VARDANYAN
TENTATIVE
RULING ON MOTION TO VACATE DEFAULT JUDGMENT
Moving Party:
Defendant, Grigor Vardanyan
Responding
Party: No Opposition
submitted
RELIEF REQUESTED
Defendant, Grigor Vardanyan moves for the Court to vacate the default judgment
entered in this case.
BACKGROUND
The 08/26/2022 Minute Order of the hearing herein
on Defendant Vardanyan’s previous motion to set aside/vacate the default
judgement states as follows:
“The matter is called for hearing.
The Court provides the following tentative ruling:
Tentative ruling on Defendant’s Motion to set aside default and vacate
default judgment:
The Court has read the moving papers. There is no proof of service
showing that Movant/Defendant gave Notice of this hearing or Motion to
Plaintiff. It appears that no opposition to the motion was filed.
Defendant’s Answer to the complaint was stricken by the Court on
September 9, 2021, as a sanction for Defendant’s litigation conduct and
failures to appear. Defendant’s motion is thus based on inapplicable facts
asserted by defendant; to wit, that Defendant was not aware of this action and
was never properly served with the summons and complaint. However, Defendant
filed and served an Answer to the Complaint, which was later stricken as noted,
and the Default and Default Judgment were subsequently entered. Thus, the Court
finds defendant’s argument in support of its motion to be unpersuasive.
Moreover, the amount of time between the entry of default (October 19, 2021),
then the default judgment (February 23, 2022), and the filing of this motion
for relief (July 11, 2022) is over eight months.
Pursuant to moving party’s factual showing, failure to give Notice of
this motion, and per the application of CCP sections 473 and 473.5 to these
facts, the Motion is denied.
The Court hears argument.
The tentative becomes the final order of the Court.
The Motion to Set Aside/Vacate Default and / or Default Judgment filed
by Grigor Vardanyan on 07/11/2022 is Denied.
The minute order is the order.”
Moving
Arguments
Defendant states he is moving to vacate the
default judgment entered in this case on February 24, 2022. [The Defendant
appears to indicate the incorrect date. According to the 8/26/2022 Minute
Order, the default judgment was entered on February 23, 2022.]
Defendant’s basis for
moving to vacate the default judgment is that he is a victim of credit card fraud;
he was never aware of this complaint nor properly served because the service
address on file was deemed as a fraudulent address opened by the identity
thief(s) on Defendant’s Identity Theft Report; and Defendant has evidence that
he is victim of credit card fraud and forgery because the identity thief(s)
were using Defendant’s likeness and identifying information for acquiring
credit accounts from various creditors.
ANALYSIS
Defendant cites what appears
to be an inapplicable Federal Rule of Civil Procedure – 60(b)(1), 60(b)(4), and
60(b)(1)) – as this Court is not a federal court.
Further, Defendant cites CCP §473 and “(Basinger v. Roger &
Wells (1990) 220 Cal.App.3d 16, 21, 269 Cal.Rptr. 332, (Basinger), fn.
Omitted).)” (Id. at 254) (Emphasis added).” (Def. Mot. p. 2.)
Defendant does not cite a specific subdivision of CCP 473.
Upon the Court’s reading of 473(a), 473(a) does not appear to be
applicable as it pertains to amending a pleading or enlarging the time for
answer or demurrer.
Further, 473(c) does not appear applicable because it pertains to what
the Court may do when the Court grants relief from default.
Therefore, 473(b) and 473(d) are the only remaining subdivisions of
473.
CCP §473(b) appears to be unhelpful to Defendant. Although 473(b)
pertains to vacating a default, it applies “in no case exceeding six months,
after the judgment, dismissal, order, or proceeding was taken.” (See CCP
§473(b).) Here, the default judgment was entered on 2/23/2022, and the instant
motion was filed with the Court on 11/15/2022. The instant motion is outside
the six-month window.
CCP §473(d) states, “The court may, upon motion of the injured party,
or its own motion, correct clerical mistakes in its judgment or orders as
entered, so as to conform to the judgment or order directed, and may, on motion
of either party after notice to the other party, set aside any void judgment or
order.”
CCP §473(d) also appears inapplicable because the moving papers
mention nothing about a clerical mistake.
TENTATIVE
RULING
Motion to vacate default
judgment is DENIED. Defendant did not submit any proof that this motion was
served, or that Plaintiff was given Notice of this motion or hearing. There was
no opposition submitted. Further, the Court cannot grant Defendant relief under
CCP §473 based on Defendant’s lack of clarity in its argument pertaining to CCP
§473, and 473(b) appears unhelpful since more than six months has passed since
the default judgment of 2/23/2022 and the filing of this motion which was filed
on 11/15/2022. No facts or applicable law have changed since this Court’s
ruling on 8/26/22. To the extent
Defendant intends this Motion as one for Reconsideration of the Court’s prior
ruling, it is untimely. Cal. Civ. Proc.
Code, section 1008.