Judge: Deborah C. Servino, Case: 30-2017-00914809, Date: 2023-08-25 Tentative Ruling

Defendant Mohammad Sayed’s ("Defendant") unopposed motion to set aside default and default judgment, is denied.

Defendant moves for relief from the default and default judgment entered against him under Code of Civil Procedure sections 473, subdivision (d), 473.5, and the inherent authority of the court. He contends that the default and default judgment entered against him should be set aside, because Plaintiff “attempted to re-join him via a new doe amendment more than two (2) years after the purported incident,” and, as such, “the applicable statute of limitations had expired as to any claims against [him].”

Code of Civil Procedure section 473, subdivision (d) allows the court to “correct clerical mistakes in its judgment or orders as entered,” and “set aside any void judgment or order.” (Code Civ. Proc., § 473, subd. (d).) Code of Civil Procedure section 473.5 provides relief when “service of a summons has not resulted in actual notice to a party in time to defend the action…” (Code Civ. Proc., § 473.5, subd. (a).) Lastly, “a court has inherent, equitable power to set aside a judgment on the ground of extrinsic fraud or mistake.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2022) ¶ 5:435 [citations omitted].)

Here, Defendant has not shown that there are grounds for setting aside the default and default judgment under statutory authority or the court’s inherent power. While Defendant contends the claims are time-barred against him, due to an invalid Doe amendment, the statute of limitations is an affirmative defense. (Universal Home Improvement, Inc. v. Robertson (2020) 51 Cal.App.5th 116, 127–128; see Salton Bay Marina, Inc. v. Imperial Irrigation Dist. (1985) 172 Cal.App.3d 914, 940; Petersen v. W. T. Grant Co. (1974) 41 Cal.App.3d 217, 223; Minton v. Cavaney (1961) 56 Cal.2d 576, 581.) Defendant has not made a general appearance in this matter to assert the affirmative defense.  Rather, he allowed default and default judgment to be entered against him.

Defendant's reliance on the successful defense put on by his co-defendants, Aziz and Protect-US, is unavailing.  Unlike Defendant, they properly asserted the affirmative defense of statute of limitations after their defaults were set aside. (ROA 420, 461.) Defendant cannot assert a statute of limitations defense, unless and until he first establishes grounds for setting aside the default and default judgment, (e.g., for improper service).  (See W. A. Rose Co. v. Municipal Court for Oakland-Piedmont Judicial Dist., Alameda County (1959) 176 Cal.App.2d 67, 72.)  Accordingly, the motion is denied. 

The Clerk shall give notice of the ruling.