Judge: Frank M. Tavelman, Case: 22BBCV00098, Date: 2023-05-05 Tentative Ruling

Case Number: 22BBCV00098    Hearing Date: May 5, 2023    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

MOTION TO SET ASIDE & VACATE DEFAULT JUDGMENT

ALLEGATIONS: 

On April 12, 2022, Rafael Chavez (“Plaintiff”) filed suit against Moises Franco, David Franco, Moises Jihovany Franco, and Franco’s Construction Inc. (collectively “Defendants”). The Complaint contains a singular cause of action for Breach of Contract. Default Judgment was entered against all Defendants on September 9, 2022.

Defendants Moises Franco, David Franco, Moises Jihovany Franco reserved February 3, 2023 for a motion to set aside default judgment. On January 13, 2023, the motion was re-scheduled to March 10, 2023 to be held concurrently with a Hearing on Application for Order for Appearance and Examination (“ORAP”) of Moises Franco. On March 10, 2023, Moises Franco failed to appear for the ORAP. A bench warrant was subsequently issued and the motion to vacate was re-scheduled to May 5, 2023.

HISTORY: 

On April 13, 2023, Defendants filed their motion to vacate default judgment. On April 24, 2023 Plaintiff filed an opposition. On April 28, 2023 Defendants filed a reply.

ANALYSIS: 

I.                    LEGAL STANDARD 

Plaintiff seeks relief pursuant to Code of Civil Procedure (“C.C.P.”) § 473.5.

C.C.P. § 473.5(a) provides as follows: “When service of a summons has not resulted in actual notice to a party in time to defend the action and a default… has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action. The notice of motion shall be served and filed within a reasonable time, but in no event exceeding the earlier of: (i) two years after entry of a default judgment against him or her; or (ii) 180 days after service on him or her of a written notice that the default… has been entered.” 

C.C.P. § 473(d) allows the Court to find a judgment void, even if facially valid, in the instance that service is defective such that jurisdiction is lacking. “To establish personal jurisdiction, compliance with statutory procedures for service of process is essential; if a default judgment was entered against a defendant who was not served with a summons as required by statute, the judgment is void, as the court lacked jurisdiction in a fundamental sense over the party and lacked authority to enter judgment.” (Kremerman v. White (2021) 71 Cal.App.5th 358, 370.)

“Even where relief is no longer available under statutory provisions, a trial court generally retains the inherent power to vacate a default judgment…where a party establishes that the judgment or order was void for lack of due process or resulted from extrinsic fraud or mistake.” (County of San Diego v. Gorham (2010) 186 Cal.App.4th 1215, 1228.)¿¿ 

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“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.” (Id., at p. 982.)¿¿¿ 

II.                 MERITS

Code of Civil Procedure § 473(b) requires the moving party submit a copy of the answer or other pleading to be filed therein, otherwise the application shall not be granted. The Court notes the moving parties have filed a copy of the proposed answer for a Moises Tejada Franco. However, Moises Tejada Franco is not a moving party, nor is he a named party in the action, nor did that person indicate they went by an a/k/a of Moises Franco.  The Court is unable to ascertain if Moises Tejada Franco is the same individual as the original defendant, Moises Franco.

The notice of motion clearly indicates the moving parties to be Moises Franco, David Franco, Moises Jihovany Franco. No proposed answers are submitted as to any of the moving parties. As such, the Court finds the motion is not in compliance with Code of Civil Procedure § 473(b) and must be denied.

The motion to set aside and vacate the default judgment is DENIED without prejudice.  

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records. 

ORDER 

Moises Franco, David Franco, Moises Jihovany Franco’s Motion to Set Aside and Vacate Default came on regularly for hearing on May 5, 2023, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows: