Judge: Katherine Chilton, Case: 21STLC02721, Date: 2022-09-07 Tentative Ruling

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Case Number: 21STLC02721     Hearing Date: September 7, 2022    Dept: 25

PROCEEDINGS:      MOTION TO SET ASIDE DEFAULT JUDGMENT

MOVING PARTY:   Defendant Kathy Kovesdi

RESP. PARTY:         Plaintiff AG Arcadia, LLC

MOTION TO SET ASIDE DEFAULT JUDGMENT

(CCP § 473)

TENTATIVE RULING:

Defendant Kathy Kovesdi’s Motion to Set Aside/Vacate Default and/or Default Judgment is CONTINUED TO OCTOBER 10, 2022 at 10:00 a.m. in Department 25 at the SPRING STREET COURTHOUSE.  At least 16 court days before the continued hearing, Defendant must file and serve supplemental papers as requested herein.  Failure to do so will 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 August 23, 2022.                                    [   ] Late                      [   ] None

REPLY:                     Filed on August 29, 2022.                                    [   ] Late                      [   ] None

ANALYSIS:

I.                Background

On April 6, 2021, Plaintiff AG Arcadia, LLC, dba Huntington Drive Health and Rehabilitation Center (“Plaintiff”) filed a complaint against Defendant Kathy Kovesdi (“Defendant”) for breach of contract, common counts, and quantum meruit.

On July 26, 2021, Plaintiff filed two Declarations of Due Diligence demonstrating an inability to serve Defendant.  Subsequently, Plaintiff applied to serve Defendant by publication and the Court granted Plaintiff’s request on October 26, 2021.  On November 30, 2021, Plaintiff filed Proof of Publication.

Defendant did not file any responsive pleadings, so on January 12, 2022, based on Plaintiff’s request, the Court entered default against Defendant.  (1-12-22 Request for Entry of Default/Judgment.)  Subsequently on April 8, 2022, default judgment was entered against Defendant in the amount of $23,817.82.  (4-8-22 Default Judgment.)

On July 26, 2022, Defendant Kathy Kovesdi filed the instant Motion to Set Aside/Vacate Default and/or Default Judgment (the “Motion”).  Plaintiff filed an opposition on August 23, 2022, and Defendant filed a Reply on August 29, 2022.

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.)

III.            Discussion

Defendant seeks to set aside the default and default judgment based on “excusable mistake.”  (Mot. p. 6.)  Specifically, Defendant argues that she did not respond to the lawsuit due to “mental confusion or illness” following a fall.  (Ibid.)

As a preliminary matter, the Court notes that the Defendant’s Notice of Motion is defective as it does not contain the address or name of the courthouse where the hearing on the Motion will be held.  The Court orders Defendant to serve and file a Notice of Motion in compliance with California Rules of Court, rule 3.1110(b).  For this reason, the hearing on the Motion is CONTINUED.

IV.           Conclusion & Order

Defendant Kathy Kovesdi’s Motion to Set Aside/Vacate Default and/or Default Judgment is CONTINUED TO OCTOBER 10, 2022 at 10:00 a.m. in Department 25 at the SPRING STREET COURTHOUSE.  At least 16 court days before the continued hearing, Defendant must file and serve supplemental papers as requested herein.  Failure to do so will result in the Motion being placed off calendar or denied.

Moving party to give notice.