Judge: Deborah C. Servino, Case: 30-2021-01195327, Date: 2022-10-28 Tentative Ruling

Defendant Andrei Leontieff’s “motion to vacate judgment and remove the lien from house” is denied.

Plaintiff American Express National Bank asserts that it was not served with a copy of the moving papers. (Baldaro Decl., at ¶ 13 [ROA 66].) Defendant’s motion is not accompanied by a proof of service, in violation of rule 3.1300(c). (Cal. Rules of Court, rule 3.1300(c) [“Proof of service of the moving papers must be filed no later than five court days before the time appointed for the hearing”].) However, because Plaintiff has actually obtained a copy of the motion and has opposed it on the merits without asking for a continuance or contending it was prejudiced, the Court will reach the merits of the motion. (See Carlton v. Quint (2000) 77 Cal.App.4th 690, 696-697.)

Defendant moves to vacate the judgment entered on March 25, 2022 and to remove the lien from his house. (See Judgment [ROA 42].) The judgment was entered after Plaintiff prevailed on its unopposed motion for summary judgment. (3/25/2022 Minute Order [ROA 37].) Although his one-page statement is difficult to decipher, it appears Defendant claims he received a call from Plaintiff that judgment had been entered “earlier this year” and that he did not understand how this was done, because he “never received any paperwork,” prior to entry of judgment, (except perhaps the notice of trial date).

As Plaintiff points out, the motion does not comply with the memorandum requirement of California Rules of Court, rule 3.1113.  Nevertheless, the court construes this motion as a request for relief under Code of Civil Procedure section 473, subdivision (b).  The court exercises its discretion to consider the request for relief on the merits.

Code of Civil Procedure section 473, subdivision (b) permits a court to grant relief from a judgment, dismissal, order or other proceeding taken against a party.  A motion for discretionary relief under Code of Civil Procedure section 473, subdivision (b) must satisfy three requirements. First, the motion must be made “within a reasonable time” and “in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (Code of Civ. Proc., § 473, subd. (b).) Second, the motion must show that the “judgment, dismissal, order, or other proceeding taken against [the moving party]” was taken as a result of “mistake, inadvertence, surprise, or excusable neglect.” (Code of Civ. Proc., § 473, subd. (b).) Lastly, the motion “shall be accompanied” by a copy of the answer or other proposed pleading to be filed, “otherwise the application shall not be granted.” (Code of Civ. Proc., § 473, subd. (b).) “The party seeking relief . . . bears the burden of proof in establishing a right to relief,” and must establish both “a satisfactory” excuse and “diligence in making the motion.” (Hopkins & Carley v. Gens (2011) 200 Cal.App.4th 1401, 1410 [party moving for relief failed to meet his burden where he “never clearly identifies any concrete actuating mistake or misrepresentation”].)

Here, the motion was brought approximately three months after the judgment was entered. While it was filed within the maximum period of six months, Defendant has not provided any facts showing that the three-month delay was reasonable. It can be gleaned from his motion that he is claiming not to have received any paperwork from Plaintiff, and that he was not aware of the judgment until he was called by Plaintiff, but he does not state when he received this call.

Second, Defendant does not provide any explanation for how he could have not received not only the original motion for summary judgment papers, but also the notice of ruling served by Plaintiff on March 25, 2022 (ROA 41), and the copy of the judgment served by the Clerk on March 28, 2022 (ROA 47). The address provided in the proofs of service matches the address Defendant provided in the caption of his Answer and the instant motion. Without further explanation from Defendant, it is difficult to believe that Defendant did not receive any of these documents.

To the extent Defendant is requesting an opportunity to oppose the motion for summary judgment, he has not attached a copy of the proposed pleading. (Compare Austin v. Los Angeles Unified School Dist. (2016) 244 Cal.App.4th 918, 933 [moving party substantially complied, despite failure to include proposed memorandum in opposition to summary judgment requirement, where factual contentions, legal arguments and request to continue motion to obtain discovery were disclosed in her various filings requesting relief].) Defendant fails to explain how he would have opposed the summary judgment motion. Accordingly, Defendant has not met his burden of establishing relief pursuant to Code of Civil Procedure section 473, subdivision (b).

Lastly, Plaintiff filed an acknowledgement of (full) satisfaction of judgment on September 14, 2022. (ROA 64.) Thus, Defendant’s request to “remove lien from house” appears to be moot.  The motion is denied.

Plaintiff shall give notice of the ruling.