Judge: Katherine Chilton, Case: 19STLC08083, Date: 2022-10-31 Tentative Ruling

Case Number: 19STLC08083     Hearing Date: October 31, 2022    Dept: 25

PROCEEDINGS:      MOTION TO VACATE JUDGMENT;

                                    RESTORE STRICKEN CROSS-COMPLAINT

MOVING PARTY:   Defendant/Cross-Complainant Nenna Anyaegbunam

RESP. PARTY:         Plaintiff/Cross-Defendant Greenify

MOTION TO VACATE JUDGMENT;

RESTORE STRICKEN CROSS-COMPLAINT

(CCP § 473(b), 473(d))

TENTATIVE RULING:

Defendant/Cross-Complainant Nenna Anyaegbunam’s Motion to Vacate Entry of Judgment/Restore Stricken Cross-Complaint is CONTINUED TO DECEMBER 6, 2022 at 10:00 a.m. in Department 25 at the SPRING STREET COURTHOUSE.  Defendant/Cross-Complainant is ordered to serve and file a corrected Notice of Motion at least 16 court days before the next scheduled hearing.  Failure to do so may result in the Motion being placed off calendar or denied.

SERVICE: 

[   ] Proof of Service Timely Filed (CRC, rule 3.1300)                 YES

[   ] Correct Address (CCP §§ 1013, 1013a)                                                 YES

[   ] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b))                     YES

OPPOSITION:          Filed on October 17, 2022.                                    [   ] Late                      [   ] None

REPLY:                     None filed as of October 24, 2022.                     [   ] Late                      [X] None

ANALYSIS:

I.                Background

On September 3, 2019, Plaintiff Greenify (“Plaintiff”) filed a complaint against Defendant Nenna Anyaegbunam (“Defendant”) for conversion.

On October 15, 2019, Defendant jointly filed an Answer and a Cross-Complaint against Greenify and Roes 1 to 10.  Defendant/Cross-Complainant filed another Answer on November 6, 2019.  Defendant also filed a First Amended Cross-Complaint (“FACC”) on November 7, 2019.  Plaintiff/Cross-Defendant filed an Answer to the FACC on November 8, 2019.

On March 2, 2021, the date set for Non-Jury Trial, the Court noted that no appearance was entered by the Defendant/Cross-Complainant and continued the Non-Jury Trial to March 30, 2021.  (9-3-19 First Amended Standing Order, 3-2-21 Minute Order.)  On March 30, 2021, the Court noted that the Defendant/Cross-Complaint was still not present despite notice of the trial and struck the Cross-Complaint for failure to prosecute.  (3-30-21 Minute Order.)  The Court also entered judgment for Plaintiff for the principal amount of $25,000.00.  (Ibid.)

On October 6, 2022, Defendant/Cross-Complainant filed the instant Motion to Vacate Entry of Judgment/Restore Stricken Cross-Complaint (“Motion”).  On October 17, 2022, Plaintiff filed an Opposition to the Motion (“Opposition”).  No reply has been filed.

II.              Legal Standard

Pursuant to Code of Civil Procedure §473(b), both discretionary and mandatory relief is available to parties from a judgment, dismissal, order, or other proceeding.  Discretionary relief is available under the statute as “the court may, upon any terms as may be just, relieve a party or his or her legal representative from judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.  (Code of Civ. Proc. § 473(b).)  Alternatively, mandatory relief is available when “accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect.”  (Ibid.)  Under this statute, an application for discretionary or mandatory relief must be made no more than six months after entry of the judgment, dismissal, order, or other proceeding from which relief is sought.  (Code Civ. Proc., § 473(b); English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 143.)

“‘[W]hen relief under section 473¿is¿available, there is a strong¿public¿policy¿in¿favor¿of granting relief and allowing the requesting party his or her day in court…[Citation.]” (Rappleyea v. Campbell¿(1994) 8 Cal. 4th 975, 981-82.)

Additionally, pursuant to Code of Code of Civil Procedure §473(d), “[t]he court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order.”

III.            Discussion

As a preliminary matter, the Court notes that Defendant/Cross-Complainant has filed a defective Notice of Motion as it does not contain the address or name of the courthouse where the hearing on the Motion will be held.  (Mot. pp. 1-2.)  The Court continues the hearing on the Motion and orders Defendant/Cross-Complainant to serve and file a Notice of Motion in compliance with California Rules of Court, rule 3.1110(b). 

IV.           Conclusion & Order

For the foregoing reasons,

Defendant/Cross-Complainant Nenna Anyaegbunam’s Motion to Vacate Entry of Judgment/Restore Stricken Cross-Complaint is CONTINUED TO DECEMBER 6, 2022 at 10:00 a.m. in Department 25 at the SPRING STREET COURTHOUSE.  Defendant/Cross-Complainant is ordered to serve and file a corrected Notice of Motion at least 16 court days before the next scheduled hearing.  Failure to do so may result in the Motion being placed off calendar or denied.

Moving party to give notice.