Judge: Katherine Chilton, Case: 22STLC04767, Date: 2023-05-04 Tentative Ruling
Case Number: 22STLC04767 Hearing Date: May 4, 2023 Dept: 25
PROCEEDINGS: MOTION TO SET ASIDE/VACATE DEFAULT
MOVING PARTY: Defendant
George Loomis
RESP. PARTY: None
MOTION TO SET ASIDE/VACATE DEFAULT
(CCP § 473(b))
TENTATIVE RULING:
Defendant George Loomis’s Motion to
Set Aside/Vacate Default is DENIED.
SERVICE:
[
] Proof of Service Timely Filed (CRC, rule
3.1300) NO
[
] Correct Address (CCP §§ 1013, 1013a) NO
[
] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b))
OPPOSITION: None filed as of May 3,
2023. [ ] Late [X]
None
REPLY: None filed as
of May 3, 2023. [ ] Late [X] None
ANALYSIS:
I.
Background
On July 19, 2022, Plaintiff David
Hradec (“Plaintiff”), in propria persona, filed an action against Defendant George
Loomis (“Defendant”) arising out of an alleged breach of contract.
On September 6, 2022, Plaintiff
filed Proof of Service by Substituted Service indicating that Defendant had
been served on July 26, 2022. (09-06-22
Proof of Service.)
On September 22, 2022, pursuant to
Plaintiff’s request, the Court entered default against Defendant. (09-22-22 Request for Entry of
Default/Judgment.)
On March
30, 2023, Defendant filed the instant Motion to Set Aside/Vacate Default
(“Motion”).
No
opposition has been filed.
II.
Legal Standard
Pursuant to Code
of Civil Procedure §473(b), both discretionary and mandatory relief is
available to parties from “judgment, dismissal, order, or other proceeding
taken against him or her.” 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.)
Furthermore,
“[a]pplication
for this relief shall be accompanied by a copy of the answer or other pleading
proposed to be filed therein.” (Code of
Civil Procedure § 473(b).)
III.
Discussion
On March 30, 2023,
Defendant filed the instant Motion to Set Aside/Vacate Default. Defendant seeks to set aside default based on
the fact that “the loan in question was to my feature film “Unthinkable” and
never for personal use in any way.”
Defendant does not cite a code section to support his argument nor does
he provide any facts to show that the default was entered due to his “mistake,
inadvertence, surprise, or excusable neglect.” Indeed, Defendant does not cite
any reason to set aside the default. As California Rule of Court 3.1113 states, “[a]
party filing a motion . . . must serve and file a supporting memorandum. The court may construe the absence of a
memorandum as an admission that the motion . . . is not meritorious and cause
for its denial . . . .” Defendant’s
failure to submit any authority or argument allows the Court to find that the
Motion is not meritorious. Furthermore,
there is no evidence that Defendant gave notice to Plaintiff.
Accordingly, Defendant’s
Motion is DENIED.
IV.
Conclusion
& Order
For the foregoing reasons,
Defendant George Loomis’s Motion to
Set Aside/Vacate Default is DENIED.
Moving party is to give notice.