Judge: Gregory Keosian, Case: 22STCV23998, Date: 2023-05-09 Tentative Ruling

Case Number: 22STCV23998    Hearing Date: May 9, 2023    Dept: 61

I.                   MOTION TO VACATE DEFAULT

Code of Civil Procedure section 473, subdivision (b) states:

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 . . . unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect. The court shall, whenever relief is granted based on an attorney's affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties.

Defendant Sophon Koeuth moves for relief from default on the grounds that he is a defendant in pro per, with limited English proficiency, who did not understand court documents or process, and who believed when judgment was entered against him that the case was closed and dismissed. (Sophon Decl. ¶¶ 2–4.) Defendant was not made aware of the judgment until he found he could not access his accounts because a lien had been placed upon them. (Sophon Decl. ¶¶ 5–8.) Thus Defendant argues the default and judgment should be vacated on grounds of excusable neglect, surprise, and mistake. (Motion at pp. 3–6.)

Plaintiff in opposition argues that the motion is untimely, as it is made more than nine months after entry of default, more than the six months provided for in Code of Civil Procedure § 473, subd. (b). (Opposition at p. 2.) Plaintiff further argues that the motion does not include the pleading that the statute requires to be attached to such a motion. (Opposition at p. 2.) Finally, Plaintiff argues that Defendant’s justification for the motion is essentially that he chose to defend the case in propria persona, which is not a permissible basis to obtain relief. (Opposition at pp. 2–3.)

Plaintiff’s arguments are persuasive. The present motion was filed on March 16, 2022, more than six months after entry of default against Defendant on June 24, 2022. The motion is thus untimely under Code of Civil Procedure § 473, subd. (b), even if the judgment was only entered less than six months ago.

The general rule is that the six-month period within which to bring a motion to vacate under section 473 runs from the date of the default and not from the judgment taken thereafter. The reason for the rule is that vacation of the judgment alone ordinarily would constitute an idle act; if the judgment were vacated the default would remain intact and permit immediate entry of another judgment giving the plaintiff the relief to which his complaint entitles him.

(Rutan v. Summit Sports, Inc. (1985) 173 Cal.App.3d 965, 970, internal citations and quotation marks omitted.) Plaintiff is also correct that Defendant’s motion is not “accompanied by a copy of the answer or other pleading proposed to be filed therein,” as required under section 473, subd. (b).

Plaintiff’s arguments against the substance of the motion are also persuasive. The fact that Defendant did not obtain representation and has limited English proficiency are not themselves sufficient to show that Defendant’s failure to appear was the result of excusable neglect. Self-represented defendants facing similar circumstances — such as neglecting a civil case due to concurrent criminal proceedings against them — have been held not to have shown entitlement to relief under Code of Civil Procedure § 473, subd. (b), or the court’s equitable powers. (See Davis v. Thayer (1980) 113 Cal.App.3d 892, 906.)

The motion is therefore DENIED.