Judge: Frank M. Tavelman, Case: 22BBCV00674, Date: 2024-11-08 Tentative Ruling

REQUESTING ORAL ARGUMENT PER CRC 3.1308

The Court will attempt to post all Tentative Rulings at least the day prior to the hearing by 3:00 p.m.; however, the Court does not post Tentative Rulings for all matters.  

The Court will indicate in the Tentative Ruling whether the Court is requesting oral argument.  For cases where the Court is not requesting argument, then the Court is guided by California Rules of Court, Rule 3.1308(a)(1) where the Court requests notice of intent to appear.  Unless the Court directs argument in the Tentative Ruling, a party seeking argument should notify "all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear and argue."  The tentative ruling will become the ruling of the court if no argument is requested.   

Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412.

Notice of the ruling must be served as indicated in the tentative.  Remote appearances are permitted for all law and motion unless otherwise indicated by the Court.  

Case Number: 22BBCV00674    Hearing Date: November 8, 2024    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

MOTION TO SET ASIDE/VACATE

NOTICE:

The Court is not requesting oral argument on this matter.  The Court is guided by California Rules of Court, Rule 3.1308(a)(1) whereby notice of intent to appear is requested.  Unless the Court directs argument in the Tentative Ruling, no argument is requested and any party seeking argument should notify all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear and argue.  The tentative ruling will become the ruling of the court if no argument is received.  

Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412.

ALLEGATIONS: 

On November 14, 2022, the Court entered Default Judgment in favor of Lendora Capital, LLC (Plaintiff) as against Carrington Transport, LLC and Gary Carrington (Defendant). The amount of the judgment was $103,144.03.

On January 5, 2024, Defendant filed a Motion to Vacate the Default Judgment pursuant to C.C.P. § 473(b). The hearing on this motion was continued when, on March 12, 2024, a Notice of Bankruptcy Stay was filed in this case. On August 28, 2024, Defendant refiled the instant motion, although without explanation.  Plaintiff asserted to the Court on October 17, 2024 that they received leave from the Bankruptcy Court to pursue this matter.  This was filed with the Court on October 16, 2024 attached to the declaration of Ashley Mulhorn.  The old and new motions to set aside / vacate are identical save for the noticed hearing date. The Court notes that despite Defendant having retained counsel between the two filings, the August 28 motion still states Defendant represents himself.

On October 17, 2024, the Court heard from both parties at a Status Conference Re: Bankruptcy. Having reviewed the order of the United State Bankruptcy Court, the Court ordered the bankruptcy stay lifted and ordered the instant motion could proceed. Plaintiff thereafter filed their opposition. Defendant has filed no reply.

ANALYSIS: 

I.                    LEGAL STANDARD 

C.C.P. § 473(b) has both a discretionary relief provision and a mandatory relief provision. (Jackson v. Kaiser Foundation Hospitals, Inc. (2019) 32 Cal.App.5th 166, 173.)  The discretionary provision of Code of Civil Procedure § 473(b), in pertinent part, reads as follows:

The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken…

The mandatory provision of C.C.P. § 473(b) reads, in pertinent part, as follows:

Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect. 

The general underlying purpose of C.C.P. § 473(b) is to promote the determination of actions on their merits. (Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830.) Under this statute, an application for relief must be made no more than six months after entry of the judgment, dismissal, order, or other proceeding from which relief is sought and must be accompanied by an affidavit of fault attesting to the mistake, inadvertence, surprise or neglect of the moving party or its attorney. (C.C.P. § 473(b); English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 143.)

II.                 MERITS

Defendant’s request for relief pursuant to C.C.P. § 473(b) is untimely. Motions brought pursuant to this section must be brought within six months of the entry of judgment. Here, judgment was entered on November 14, 2022. Plaintiff did not file this motion until January 5, 2024. The bankruptcy stay has no bearing on Defendant’s untimeliness because this motion was already untimely filed when the stay went into place. Defendant therefore cannot seek relief under either provision of C.C.P. § 473(b).

The Court notes that although the requested relief is unavailable to Defendant, relief from default may be obtainable through other statutes. At current, Defendant’s filing does not contain the information required for the Court to ascertain that such relief is appropriate. Defendant’s motion contains no memorandum outlining arguments for alternative relief. The Court notes the lack of a memorandum renders the motion defective under Cal. Rules of Court Rule 3.1113(a).

Lastly, the Court notes that Defendant’s filings do not include a proposed responsive pleading as required by C.C.P.§ 473(b). Failure to include this proposed pleading also necessitates denial of a motion for relief pursuant to this statute. Other statutes outlining relief from default also require a proposed responsive pleading. (See C.C.P. § 473.5 [“the party shall serve and file with the notice a copy of the answer, motion, or other pleading proposed to be filed in the action.]; see also Rappleyea v. Campbell (1994) 8 Cal.4th 975, 982 [holding that relief from default under extrinsic fraud must be accompanied by a showing of a meritorious case].)

Accordingly, the Motion to Vacate 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 

Gary Carrington’s Motion to Set Aside/Vacate came on regularly for hearing on November 8, 2024, 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: 

THE MOTION TO VACATE DEFAULT JUDGMENT IS DENIED WITHOUT PREJUDICE.

PLAINTIFF TO GIVE NOTICE.

IT IS SO ORDERED. 

DATE: November 8, 2024                            _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles