Judge: Elaine W. Mandel, Case: 24SMCV00436, Date: 2024-06-27 Tentative Ruling
Case Number: 24SMCV00436 Hearing Date: June 27, 2024 Dept: P
Tentative
Ruling
Mahfoud
v. Letizia, et al., Case No. 24SMCV00436
Hearing
Date June 27, 2024
Defendant
Wonder Nights, LLC’s Motion to Set Aside Default Judgment
Plaintiff,
in pro per, sued defendants Letizia and Wonder Nights arising out of a claim
that plaintiff loaned defendants money for a business, which was not repaid,
and plaintiff was locked out of the business.
On
April 9, 2024 default was entered against Wonder Nights, which moves to set
aside based on counsel’s inadvertence, surprise or excusable neglect. Defense
counsel stated he did not inquire into whether his client was properly served
and took his time to prepare the answer on the assumption that his client was
still waiting for proper service. Morris Decl. ¶¶4,
6.
Code
of Civil Procedure section 473(b) provides the statutory framework for setting
aside a default, including filing a proposed answer. Rules of Court, rule 3.1110(b) requires
the first page of each paper to specify immediately below the case number “(1)
The date, time, and location, if ascertainable, of any scheduled hearing and
the name of the hearing judge, if ascertainable[.]”
Plaintiff
argues the motion fails to comply with Code of Civil Procedure section 473(b)’s
requirement that a copy of the proposed answer be filed, and Cal. Rules of
Court, rule 3.1110(b) requirement that a motion provide the hearing date
information.
No
reply was filed. The court has no basis to find that plaintiff was properly served,
and the moving papers fail to include information regarding the date, time,
location and hearing officer.
Failure
to serve notice with the hearing date information renders notice defective.
Code Civ. Proc. §1010 [“Notices must be in writing, and the notice of a motion,
other than for a new trial, must state when and the grounds upon which it will
be made, and the papers, if any, upon which it is to be based.”; Bohn v.
Bohn (1913) 164 Cal. 532, 536-537 [failure to include notice of date and
time of hearing in notice of motion renders the notice fatally defective]; Galleria
Plus, Inc. v. Hanmi Bank (2009) 179 Cal.App.4th 535, 538 [addressing notice
of motion for sanctions]; Cal. Rules of Court 3.1110(b)(1) [the notice of a
motion must set forth "the date, time, and location, if ascertainable, of
any scheduled hearing. . . ."].
The
motion may be continued to allow defendant to give proper notice and comply
with applicable statutes.