Judge: Katherine Chilton, Case: 20STLC09367, Date: 2022-08-01 Tentative Ruling

Case Number: 20STLC09367     Hearing Date: August 1, 2022    Dept: 25

PROCEEDINGS:      MOTION TO SET ASIDE/VACATE DEFAULT AND/OR DEFAULT JUDGMENT

MOVING PARTY:   Defendant Jacqui Jourdan

RESP. PARTY:         None

MOTION TO SET ASIDE/VACATE DEFAULT AND/OR DEFAULT JUDGMENT

(CCP § 473.5)

TENTATIVE RULING:

Defendant Jacqui Jourdan’s Motion to Set Aside/Vacate Default and/or Default Judgment is 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:          None filed as of July 28, 2022.                           [   ] Late          [X] None

REPLY:                     None filed as of July 28, 2022.                           [   ] Late          [X] None

ANALYSIS:

I.                Background

On November 6, 2020, Robertson’s Ready Mix, Ltd. filed an action against Angel Castillo, Jacqui Jourdan aka Jackie Jordan, and Jacqueline Boyd (collectively “Defendants”) for 1) breach of contract, 2) common counts, and 3) foreclosure of mechanic’s lien.  The action arose out of alleged business transactions for purchase and sale of construction goods and materials between Plaintiff and Defendants.  (Compl. ¶ 11.)

On January 6, 2021, Defendant Jacqueline Boyd, aka Jacqui Jourdan, in propria persona, filed an Answer, denying all allegations in the Complaint.

On February 16, 2021, Plaintiff filed a Request for Entry of Default/Judgment against Defendants Angel Castillo and Jacqueline Boyd; default was entered on the same day.

On May 13, 2022, Defendant Jacqui Jordan filed a Motion to Set Aside/Vacate Default and/or Default Judgment Against Jacqueline Boyd and Permission to File Counter Claim and Submit Evidence Against Robertson’s Ready Mix, Ltd.  Defendant Jacqui Jordan stated that Plaintiff named her twice in the lawsuit, as Jacqueline Boyd and as Jacqui Jordan and even after Defendant Jacqui Jordan filed an Answer, Plaintiff filed a Request for Entry of Default against Jacqueline Boyd.  (5-13-22 Motion p. 1.)  Defendant Jacqui Jordan also requested permission from the Court to file a counter claim and explained that she had not done so earlier because her lawsuit against Plaintiff was pending in small claims court.  (Ibid. pp. 1-2.). On June 3, 2022, Plaintiff filed an Opposition to Defendant’s Motion, arguing that Defendant’s Motion was untimely, Defendant was not in default since she had filed an Answer, and Defendant’s request to file a cross-complaint was untimely.  On June 15, 2022, the Court denied Defendant’s motion for being untimely and not citing to any legal authority.

On July 6, 2022, Defendant Jacqui Jordan re-filed the instant Motion to Set Aside/Vacate Default and/or Default Judgment Against Jacqueline Boyd and Motion to Dismiss Case Against Jacqueline Boyd and Permission for Leave of Court to File Counter Claim and Submit Evidence Against Robertson’s Ready Mix, Ltd.  No opposition was filed.

II.              Legal Standard & Discussion

A.    Defendant’s Motion

The Court had previously denied Defendant Jacqui Jourdan’s Motion to Set Aside/Vacate Default and/or Default Judgment for being untimely and not citing to any “law, statutory or otherwise, in support of her motion, articulating a ground for any of the relief she seeks.”  (6-15-22 Minute Order.)

Defendant has re-filed the previously denied Motion.  Pursuant to Code of Civil Procedure § 1008(b):

(b) A party who originally made an application for an order which was refused in whole or part, or granted conditionally or on terms, may make a subsequent application for the same order upon new or different facts, circumstances, or law, in which case it shall be shown by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.  For a failure to comply with this subdivision, any order made on a subsequent application may be revoked or set aside on ex parte motion.

            Defendant’s renewed Motion does not comply with any of the requirements of § 1008(b).  Defendant has not attached an affidavit regarding the previous decision or offered any new or different facts, circumstances, or law that warrant the renewed motion.  Defendant only adds a citation to Code of Civil Procedure § 473(b) as the basis of her Motion.

Furthermore, Defendant has been seeking to set aside the default against Jacqueline Boyd, entered on February 16, 2021, arguing that Jacqueline Boyd is an alias of Jacqui Jourdan and Jacqui Jordan had filed an Answer to the Complaint on January 6, 2021.  The following names appear throughout Defendant’s pleadings: Jacqui Jourdan, Jacqueline Boyd, and Jacqueline Jourdan.  (1-6-21 Answer p. 1, 5); Jacqueline Jourdan aka Jacqueline Boyd aka Jacqui Jourdan (5-13-22 Motion pp. 1-2, 7-6-22 pp. 1, 2.)  However, the Court would need supporting evidence or a sworn affidavit to confirm that the two named Defendants in the care are the same person; Defendants has not presented any such evidence.

Since Defendant has not complied with Code of Civil Procedure § 1008(b) regarding requirements to refile her Motion, the Court DENIES Defendant’s Motion to Set Aside/Vacate Default and/or Default Judgment.

Conclusion & Order

For the foregoing reasons, Defendant Jacqui Jourdan’s Motion to Set Aside/Vacate Default and/or Default Judgment is DENIED.

            Moving party to provide notice.