Judge: Frank M. Tavelman, Case: 22GDCV00627, Date: 2023-04-14 Tentative Ruling

Case Number: 22GDCV00627    Hearing Date: April 14, 2023    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

MOTION TO SET ASIDE DEFAULT JUDGMENT

ALLEGATIONS: 

On September 26, 2022 Creditor’s Adjustment Bureau (“Plaintiff”) filed suit against HT Builders (“Defendant”) in connection with an alleged collections account. The Complaint contains causes of action for (1) Breach of Contract, (2) Open Book Account, (3) Account Stated, and (4) Reasonable Value. The amount sought is $105,868.00.

On November 14, 2022, default was entered against Defendant. On February 2, 2023, default judgment was entered against Defendant. Plaintiff now moves to set aside the default judgment pursuant to Code of Civil Procedure § 473(b).

HISTORY: 

On February 23, 2023, Defendant filed this motion to set aside default judgment. On March 3, 2023, Plaintiff filed its opposition. On April 4, 2023, Defendant filed its reply.  

ANALYSIS: 

I.                LEGAL STANDARD 

Plaintiff seeks relief pursuant to Code of Civil Procedure § 473(b). Code of Civil Procedure § 473(b) has both a discretionary relief provision and a mandatory relief provision. (Jackson supra, 32 Cal. App. 5th 166, at 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 Code of Civil Procedure § 473 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 purpose of Code of Civil Procedure § 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

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 Defendant has not filed a copy of its proposed answer with its motion. As such, the Court finds Defendant’s 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 

HT Builders’ Motion to Set Aside and Vacate Default Judgment came on regularly for hearing on April 14, 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: 

THE MOTION TO SET ASIDE AND VACATE DEFAULT JUDGMENT IS DENIED WITHOUT PREJUDICE. 

IT IS SO ORDERED. 

DATE:  APRIL 14, 2023                            _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles