Judge: Gary I. Micon, Case: 23CHCV02733, Date: 2024-09-10 Tentative Ruling

Case Number: 23CHCV02733    Hearing Date: September 10, 2024    Dept: F43

George Matar vs. Bimmerhead Werx LLC, et al.

Trial Date: N/A

MOTION TO SET ASIDE/VACATE DEFAULT

MOVING PARTY: Defendants Bimmerhead Werx LLC and Jessie Rueckel

RESPONDING PARTY: Plaintiff George Matar

RELIEF REQUESTED

Defendants are requesting that the Court enter an order setting aside or vacating the default and default judgment entered against them.

RULING: Motion is denied without prejudice.

SUMMARY OF ACTION

On September 11, 2023, Plaintiff George Matar (Plaintiff) filed this breach of contract case against Defendants Bimmerhead Werx LLC and Jessie Rueckel (Defendants).

On October 9, 2023, Plaintiff filed proof of personal service indicating that Defendants were served via substituted service at 3148 Orange Ave., La Crescenta-Montrose, CA 91214. A Jane Doe accepted the service at Rueckel’s address. Defendant Jessie Rueckel is also the registered agent for service of process for Defendant Bimmerhead Werx LLC, so the Defendants were both served via substituted service at Rueckel’s address. The proofs of substituted service also include proofs of service by mail, as well as declarations of reasonable diligence indicating the other attempts at personal service. Thereafter, default judgment was entered against Defendants on July 9, 2024.

Defendants argues in their motion to set aside default, filed on July 12, 2024, that they did not receive actual notice of the lawsuit and did not learn of the lawsuit until default had been entered. Defendants also argue that the entry of default and default judgment was the product of surprise. Next, they argue that the service of summons was not statutorily compliant. Finally, Defendants argue that the default judgment is void because Defendant Bimmerhead Werx was not properly named in the complaint.

Plaintiff argues in his opposition that Defendant Rueckel has failed to show that the judgment was entered by surprise. Next, Plaintiff argues that Defendants have failed to demonstrate that the default and default judgment was caused by the attorney’s mistake, inadvertence, surprise, or neglect. Plaintiff also argues that Defendants’ motion is not accompanied by an answer or other responsive pleading as required by CCP § 473(b). Finally, Plaintiff argues that the default judgment is not void because the proper Defendants have been properly named, served by Code-compliant means, and apprised of the nature of the claims.

In their reply, Defendants argue that they have demonstrated that the judgment was taken against them by surprise. Defendants also argue that it was unnecessary for them to file an answer with their motion because the default was taken against them by surprise. Finally, Defendants argue that they have demonstrated that they default judgment was taken by the attorney’s mistake, inadvertence, surprise, or neglect.

ANALYSIS

Defendants filed this motion pursuant to CCP §§ 473(b) and 473.5.

CCP § 473(b) 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…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.

CCP § 473.5 states as follows: 

(a)   When service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment 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 or default judgment has been entered.

(b)   A notice of motion to set aside a default or default judgment and for leave to defend the action shall designate as the time for making the motion a date prescribed by subdivision (b) of Section 1005, and it shall be accompanied by an affidavit showing under oath that the party’s lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect. 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.

The law favors hearings on the merits, so any doubts as to the application of section 473, et seq., should be resolved in favor of the party seeking relief from default. (See Shapiro v. Clark (2008) 164 Cal.App.4th 1128, 1139-1140.)

Both CCP §§ 473 and 473.5 require that a copy of a proposed answer or other responsive pleading be filed with the motion to set aside default. Defendants have not included a copy of a responsive pleading with their motion. Rather than including a responsive pleading with their reply after Plaintiff pointed this out in his opposition, Defendants instead argue that an answer is not necessary. The cases that Defendants cite in support of this argument (In re Jafroodi (2023) 651 B.R. 13; Aristocrat Technologies, Inc. v. High Impact Design & Entertainment (2009) 642 F.Supp.2d 1228) arise under federal procedural law, and neither case mentions the CCP requirement of including a proposed answer with a motion to set aside default. Furthermore, the text of CCP §§ 473(b) and 473.5(b) make it clear that filing a proposed responsive pleading with the motion to set aside default is required. CCP § 473(b) in particular states that the application for relief shall be accompanied by a proposed responsive pleading, “otherwise the application shall not be granted.”

Accordingly, the Court will not reach a decision on the merits of Defendants’ motion. Defendants’ motion is denied without prejudice on a procedural basis due to Defendants’ failure to file a proposed responsive pleading with their motion to set aside default.

CONCLUSION

Defendant’s motion to set aside and vacate entry of default and default judgment is denied without prejudice.

Moving party to give notice.