Judge David A. Rosen, Case 21GDCV00313 2022-12-16 Tentative Ruling

Judge: David A. Rosen, Case: 21GDCV00313, Date: 2022-12-16 Tentative Ruling

Case Number: 21GDCV00313 Hearing Date: December 16, 2022 Dept: E

Hearing Date: 12/16/2022 – 8:30am
Case No. 21GDCV00313
Trial Date: N/A
Case Name: CAPITAL ONE BANK (USA), N.A. v. LILIT A KARAPETYAN

TENTATIVE RULING ON MOTION TO SET ASIDE AND VACATE DEFAULT JUDGMENT

Moving Party: Plaintiff, Capital One Bank (USA), N.A.

Responding Party: No Opposition

Proof of Service Timely Filed (CRC Rule 3.1300): ok
16/21 Court Days Lapsed (CCP 1005(b)): ok
Proper Address: Uncertain – This motion and accompanying papers was allegedly served on Defendant at “Lilit A Karapetyan, 208 E Chevy Chase Dr Apt 8, Glendale, CA 91205-3138.” On eCourt, there is no address listed for Defendant, so there is no way to see if Defendant was properly served this motion.

Moving party filed a notice of submission without appearance. C.R.C. 3.1304(c).

RELIEF REQUESTED

Plaintiff, Capital One Bank (USA), N.A. moves this Court to Set Aside and Vacate the Default Judgment entered December 6, 2021, and then enters a dismissal with prejudice of the entire action.

BACKGROUND ACCORDING TO PLAINTIFF’S MOTION
This action arises out of a debt Plaintiff was owed by Defendant. On or about March 5, 2021, Plaintiff filed its Complaint for Account Stated. A proof of service of the summons and complaint was filed on June 23, 2021, indicating that Defendant was served. There was no answer filed. Plaintiff mailed a copy of the Request for Default Judgment to Defendant. The default judgment was entered December 6, 2021. After filing of the default judgment, Plaintiff received notification that the Defendant claimed fraud on the account. Plaintiff reviewed and confirmed the fraud claim.

Plaintiff now files this motion to set aside the previously entered default and default judgment in order to file a dismissal of this action with prejudice.

ANALYSIS
Plaintiff states that CCP §473(b) permits the court to relieve a party of judgment where a judgment has been obtained by mistake or surprise.

CCP §473(b) states:

“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. However, in the case of a judgment, dismissal, order, or other proceeding determining the ownership or right to possession of real or personal property, without extending the six-month period, when a notice in writing is personally served within the State of California both upon the party against whom the judgment, dismissal, order, or other proceeding has been taken, and upon his or her attorney of record, if any, notifying that party and his or her attorney of record, if any, that the order, judgment, dismissal, or other proceeding was taken against him or her and that any rights the party has to apply for relief under the provisions of Section 473 of the Code of Civil Procedure shall expire 90 days after service of the notice, then the application shall be made within 90 days after service of the notice upon the defaulting party or his or her attorney of record, if any, whichever service shall be later. No affidavit or declaration of merits shall be required of the moving party. Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect. The court shall, whenever relief is granted based on an attorney’s affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties. However, this section shall not lengthen the time within which an action shall be brought to trial pursuant to Section 583.310.”

Plaintiff thus argues that in the interest of fairness and justice, Plaintiff now moves to set aside and vacate the default and default judgment so that Plaintiff may dismiss this case with prejudice. Plaintiff states that it filed all documents in this case in good faith and had Plaintiff been aware earlier of the fraudulent status of the account, Plaintiff would not have submitted the default request. Plaintiff states that it has determined that the most appropriate action would be to dismiss this matter, which will be accomplished once the default and default judgment have been set aside.

The Court notes that the statute that Plaintiff cited, CCP §473(b) appears to be the wrong statute for Plaintiff to move under. CCP §473(b) pertains to vacating “in no case exceeding six months,” and this motion to vacate/set aside exceeds six months since the default judgment was entered. The default judgment was entered here on December 6, 2021, and the instant motion was served on 10/5/2022 and filed with the Court on 10/10/2022.

TENTATIVE RULING: The Motion is nevertheless granted in the interest of justice. Movant/plaintiff must now give timely, proper Notice of this ruling to Defendant.