Judge: Latrice A. G. Byrdsong, Case: 19STLC03980, Date: 2024-02-08 Tentative Ruling
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Case Number: 19STLC03980 Hearing Date: February 8, 2024 Dept: 25
Hearing Date: Thursday, February 08, 2024
Case Name: INTERINSURANCE
EXCHANGE OF THE AUTOMOBILE CLUB v. GUILLERMINA PANAGOULIAS; Alicia V. Elliott
and DOES 1 through 10, Inclusive
Case No.: 19STLC03980
Motion: Motion to Set Aside the Judgment and Any Default, to Quash any Writ of
Execution, Affidavit of Non-Avoidance of Service, Meritorious Defense
Moving Party: Defendant
In Pro Per Guillermina Panagoulias
Responding Party: None
Notice: NO
Tentative Ruling: Defendant Guillermina
Panagoulias’s Motion to Set Aside the Judgment is DENIED.
SERVICE:
[X]
Proof of Service Timely Filed (CRC, rule 3.1300) NO
[X]
Correct Address (CCP §§ 1013, 1013a) OK
[X]
16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) NO
OPPOSITION: None filed as of January 26, 2024 [ ] Late [X] None
REPLY: None filed as of February 01, 2024 [ ] Late [X] None
BACKGROUND
On April 22, 2019, Plaintiff Interinsurance Exchange of
the Automobile Club (“Plaintiff”) filed a subrogation action against Defendants
Guillermina Panagoulias (“Panagoulias”) and Alicia V. Elliott (“Elliott”) (collectively
“Defendants”).
On March 03, 2020, Plaintiff moved for default to be
entered against Defendants. The Clerk entered default that same day.
The Court entered default judgment for Plaintiff and
against Defendants for $12,031.68 on October 28, 2020.
On March 11, 2021, Plaintiff filed Certificates of Facts
re: Unsatisfied Judgment as to each of the Defendants.
On January 24, 2024, Defendant Panagoulias filed the
instant Motion to Set Aside the Judgment and Any Default, to Quash Any Writ of Execution,
Affidavit of Non-Avoidance of Service, Meritorious Defense.
No opposition has been filed.
MOVING PARTY
POSITION
Defendant Panagoulias prays for the
Court to issue an order setting aside the default judgment and quashing any writ
of execution entered against her under either Civil Code § 1788.61(a)(2)(A),
CCP §§ 473(b)-(d), 473.5, 473(d), 128(a)(8), 86(b)(3), Federal Rules of Civil
Procedure Rules (60)(b)(1)(3)(4) and (6) and 60(d)(2) and (3). Panagoulias
argues that relief is warranted in this case based on grounds of excusable neglect,
surprise, and non-service of summons and complaint.
OPPOSITION
No
opposition has been filed.
REPLY
No reply
has been filed.
ANALYSIS
I. Legal
Standard
Under Code of Civil Procedure, section 473, subdivision
(b), “[t]he court may…relieve a party or his or her legal representative from a
judgment, dismissal, order, or other proceeding taken against him or her
through his or her mistake, inadvertence, surprise, or excusable neglect.” An application for relief must be made no
more than six months after entry of the order from which relief is sought and
must be accompanied by an affidavit of fault attesting to the moving party’s
mistake, inadvertence, surprise, or neglect. (Code Civ. Proc., § 473, subd.
(b); English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 143.)
Application for this relief shall be accompanied by a copy of the answer or
other pleading proposed to be filed therein, otherwise the application shall
not be granted, and shall be made within a reasonable time, in no case
exceeding six months, after the judgment, dismissal, order, or proceeding was
taken.” (Code Civ. Proc., § 473, subd. (b).)
“It is the policy of the law to favor, wherever possible, a
hearing on the merits, and appellate courts are much more disposed to affirm an
order where the result is to compel a trial upon the merits than they are when
the judgment by default is allowed to stand, and it appears that a substantial
defense could be made. Stated another way, the policy of the law is to have
every litigated case tried upon its merits, and it looks with disfavor upon a
party, who, regardless of the merits of the case, attempts to take advantage of
the mistake, surprise, inadvertence, or neglect of his adversary.” (Weitz v.
Yankosky (1966) 63 Cal.2d 849, 854–855.)
II. Discussion
The Court
finds the motion is improperly filed. Code of Civil Procedure § 1005(b) provides
that a motion must be filed and served at least sixteen (16) days before the
hearing. (Code Civ. Proc. § 1005(b).) If notice was served by mail, the 16-day
notice period is increased by five days if mailed to an address in California.
(Id.) Here, the Court notes that Defendant Panagoulias’s proof of service indicates that
Plaintiff was served by mail on January 22, 2024, less than 16 days before the
scheduled hearing. Moreover, Defendant Panagoulias filed the instant motion on January
24, 2024, which is 12 days before the hearing.
Accordingly, for the foregoing
reason the motion is DENIED for improper filing.
III. Conclusion
Defendant Guillermina
Panagoulias’s Motion to Set Aside the Judgment is DENIED.
Moving party is ordered to give
notice.