Judge: Katherine Chilton, Case: LAM11K12674, Date: 2022-07-28 Tentative Ruling

Case Number: LAM11K12674     Hearing Date: July 28, 2022    Dept: 25

PROCEEDINGS:      MOTION TO SET ASIDE/VACATE JUDGMENT

MOVING PARTY:   Plaintiff Capital One Bank (USA) N A

RESP. PARTY:         None

MOTION TO SET ASIDE/VACATE JUDGMENT

(CCP § 473(b))

TENTATIVE RULING:

Plaintiff Capital One Bank’s Motion to Set Aside/Vacate Judgment is GRANTED.  The default judgment entered on September 30, 2011, and the renewal of judgment entered on January 22, 2021, are HEREBY VACATED.

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 25, 2022                [   ] Late                      [X] None

REPLY:                     None filed as of July 25, 2022                [   ] Late                      [X] None

ANALYSIS:

I.                Background

On August 1, 2011, Plaintiff Capital One Bank (USA) N. A. (“Plaintiff”) filed an action against Jose R. Hernandez (“Defendant”) for breach of a credit card agreement.

Plaintiff failed to file responsive pleadings; thus, default judgment was entered against Defendant on September 30, 2011.  On January 22, 2021, Plaintiff filed an Application for and Renewal of Judgment and Memorandum of Costs After Judgment.

On June 20, 2022, Plaintiff filed the instant Motion to Set Aside/Vacate Judgment (“Motion”).  No opposition was filed.

II.              Legal Standard & Discussion

Plaintiff seeks discretionary and mandatory relief pursuant to Code of Civil Procedure § 473(b).  (Mot., p. 4.)  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.)

Plaintiff’s Motion was filed on June 20, 2022.  It seeks to set aside the default judgment entered on September 30, 2011, and the renewal of judgment, entered on January 22, 2021, due to “Plaintiff’s counsel’s reasonable mistake, inadvertence, surprise and excusable neglect.”  (Mot. p. 6.)  Specifically, Counsel explains that “the Request for Entry of Default and Default Judgment were filed without Plaintiff counsel’s knowledge that Defendant had a valid fraud claim regarding the credit card account that is the subject of the instant matter.”  (D’Anna Decl. ¶ 5.)  Plaintiff’s Counsel learned about the valid fraud claim on May 16, 2022, and soon thereafter, filed the instant Motion.  (Ibid. at ¶ 6.)  Counsel contends that this was the result of a reasonable and inadvertent mistake.  (Ibid. at ¶ 5.) 

The Court finds that Plaintiff’s motion is untimely, as it was filed more than six months after the entry of default on September 30, 2011.  Thus, the Court cannot set aside the default judgment pursuant to Code of Civil Procedure § 473(b).

“Even where relief is no longer available under statutory provisions, a trial court generally retains the inherent power to vacate a default judgment…where a party establishes that the judgment or order was void for lack of due process or resulted from extrinsic fraud or mistake.” (County of San Diego v. Gorham (2010) 186 Cal.App.4th 1215, 1228; Bacon v. Bacon (1907) 150 Cal. 477, 491-92; Olivera v. Grace, 122 P.2d 564, 567-68; Stiles v. Wallis (1983) 147 Cal.App.3d 1143, 1147 (“There are four grounds which a court, utilizing its equity capacity may rely upon to provide relief from default.  Those areas are (1) void judgment, (2) extrinsic fraud, (3) constructive service, and (4) extrinsic mistake.”)  In limited civil cases, grounds for equitable relief also include “inadvertence or excusable neglect.”  (Code of Civ. Proc. § 86(b)(3).)

Here, the Court may rely on its equitable powers to grant relief based on Counsel’s inadvertence or excusable neglect, which resulted in the default judgment and subsequent renewal of said judgment.  Thus, Plaintiff’s Motion to Set Aside/Vacate Default Judgment is GRANTED.

III.            Conclusion & Order

For the foregoing reasons, Plaintiff Capital One Bank’s Motion to Set Aside/Vacate Default Judgment With Prejudice is GRANTED.  The dismissal entered on September 30, 2011, and the renewal of judgment entered on January 22, 2021, are HEREBY VACATED.

Moving party is ordered to give notice.