Judge: Deborah C. Servino, Case: 30-2020-01154133, Date: 2022-11-04 Tentative Ruling
Defendants John J. Carroll, IV, Heidi M. Tavernetti, and Johnathan Tavernetti-Carroll move to set aside entry of default and default judgment against Johnathan Tavernetti-Carroll.
As an initial matter, Defendants John J. Carroll and Heidi M. Tavernetti, two of the three moving parties, are no longer defendants to this action, having been dismissed on July 14, 2022. (ROA 66.) In any event, the motion only concerns Defendant Tavernetti-Carroll (hereinafter “Defendant”).
Defendant is under the mistaken impression that default judgment was also entered, even though that has not happened. (See 9/15/2022 Minute Order [noting that While Plaintiff submitted a default judgment packet, because there was a pending motion to set aside default and default judgment, it was the court’s custom and practice not to enter a default judgment when there is a pending motion to set aside default].) As such, the ruling only addresses the arguments made in the motion regarding setting aside of the entry of default.
Though most of Defendant’s motion seeks relief from the non-existent default judgment, it appears that he seeks relief from entry of default based on the court’s discretionary authority under Code of Civil Procedure section 473, subdivision (b) due to mistake, inadvertence, surprise, or excusable neglect. However, as noted by Defendant, discretionary relief under section 473, subdivision (b) is only available if sought within six months of entry of default. Recognizing this time limitation, Defendant also argues for relief based on extrinsic mistake. Defendant asserts that extrinsic mistake occurred because the request for entry of default was not contained in the file that was transferred to his current counsel’s office when current counsel took the case over from prior counsel, that current counsel became aware of the entry of default when Plaintiff submitted his mediation brief on April 21, 2022, and that six months has not expired since current counsel’s became aware of the entry of default. Defendant contends that the six-month period should begin from the time the mistake was discovered.
To the extent that Defendant is asserting that the six-month period for discretionary relief under Code of Civil Procedure section 473, subdivision (b) should begin upon discovery of the mistake, he did not support that assertion with citation to authority. Moreover, section 473, subdivision (b) expressly states that application for discretionary relief “shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” That “six-month time limitation is jurisdictional; the court has no power to grant relief under section 473 once the time has lapsed. [Citations.]” (Austin v. Los Angeles Unified School District (2016) 244 Cal.App.4th 918, 928.) Defendant’s default was entered on July 7, 2021. He did not file this motion until July 18, 2022.
“After six months from entry of default, a trial court may still vacate a default on equitable grounds even if statutory relief is unavailable. [Citation.]” (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981.) “One ground for equitable relief is extrinsic mistake—a term broadly applied when circumstances extrinsic to the litigation have unfairly cost a party a hearing on the merits. [Citations.] . . . [¶][¶] ‘To set aside a judgment based upon extrinsic mistake one must satisfy three elements. First, the defaulted party must demonstrate that it has a meritorious case. Second[ ], the party seeking to set aside the default must articulate a satisfactory excuse for not presenting a defense to the original action. Last [ ], the moving party must demonstrate diligence in seeking to set aside the default once . . . discovered.’ [Citation.]” (Id. at pp. 981-982.)
In support of his motion to set aside entry of default based on extrinsic mistake, Defendant submitted a declaration from his current counsel, Edward Dailo. However, counsel’s declaration does not state any facts to satisfy the three elements for relief due to extrinsic mistake. The declaration does not discuss the merits of Defendant’s case, provide a satisfactory excuse for not presenting a defense, or demonstrate diligence in seeking to set aside the entry of default once it was discovered.
Because discretionary relief under Code of Civil Procedure section 473, subdivision (b) is not available and Defendant has not demonstrated the elements for relief based on extrinsic mistake, Defendant’s motion to set aside entry of default is denied.
Plaintiff shall give notice of ruling.