Judge: Latrice A. G. Byrdsong, Case: 20STLC09409, Date: 2024-02-05 Tentative Ruling

Case Number: 20STLC09409    Hearing Date: February 5, 2024    Dept: 25

Hearing Date:                         Monday, February 05, 2024

Case Name:                             DALE KIM v. MUATH ALARAFAH

Case No.:                                20STLC09409

Motion:                                   Motion to Set Aside Order for No Appearance for Debtor Examination and Reopen

Moving Party:                         Plaintiff Dale Kim  

Responding Party:                   None

Notice:                                    NO

Tentative Ruling:                    Plaintiff Dale Kim’s Motion to Set Aside Order is DENIED.

SERVICE: 

[X] Proof of Service Timely Filed (CRC, rule 3.1300)                      NO

[X] Correct Address (CCP §§ 1013, 1013a)                                      NO

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b))                       NO 

OPPOSITION:          None filed as of January 23, 2024                  [   ] Late          [X] None 

REPLY:                     None filed as of January 29, 2024                  [   ] Late          [X] None 

BACKGROUND

On November 6, 2020, Plaintiff Dale Kim (“Plaintiff”) filed an action against Muath Alarafah (“Defendant”).

Defendant filed a general denial, in pro per, on December 10, 2020.

Plaintiff filed a Motion for Order Deeming Admitted Truth of Facts and Genuineness of Documents and Imposing Monetary Sanctions (the “Motion”) on November 29, 2021. The Court granted the motion on January 6, 2022, and issued monetary sanctions in the amount of $449.40 against the Defendant.

On July 07, 2022, at the conclusion of a non-jury trial, the Court ordered judgment entered for Plaintiff against Defendant and for damages of $18,492.59, with cost determined per the filing of Memorandum of Costs. On July 21, 2022, the Court entered judgment for Plaintiff and against Defendant in the amount of $18,492.59.  

On December 06, 2023, the Court on its own motion ordered the Hearing on Application for Order for Appearance and Examination of Judgment Debtor Muath Alarafah taken off calendar finding no proof of service of notice of the hearing filed and no appearance of either party.

On January 02, 2024, Plaintiff filed the instant Motion to Set Aside Order for No Appearance for Debtor Examination and Reopen.

No opposition has been filed.

MOVING PARTY POSITION

Plaintiff prays for an order from the Court setting aside the Court’s Order of December 06, 2023, taking the Judgment Debtor Examination hearing off calendar for lack of service of notice and no appearances. Plaintiff argues that the Judgment Debtor Examination was taken off calendar due to Plaintiff’s excusable neglect as service on both parties was ineffective, resulting in neither him nor Defendant appearing at the hearing.  Plaintiff indicates that he has a more recent address for Defendant and can now reserve a hearing for this Motion.

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

As an initial matter, the Court finds that Plaintiff’s motion is improper for the relief sought.  Here, judgment was entered for Plaintiff and against Defendant on July 21, 2022, in the amount of $18,492.59.  The Court’s 12/6/2023 Minute Order taking the Judgment Debtor Examination hearing off calendar was not an order take against Plaintiff.  Rather, it was a procedural determination made based on the lack of proof of service of notice for that hearing being filed as required under CCP section 708.110 and no appearances at the hearing.  The Court notes that Plaintiff attaches an Application and Order for Appearance and Examination to his motion.  Plaintiff may still proceed with the proper post-judgment enforcement actions, including seeking an order for appearance and examination, pursuant to the relevant statutes.  Moreover, based on the moving papers, it appears the required notice of the instant motion was not provided to Defendant.

            Accordingly, for the foregoing reasons the motion is DENIED.

III.       Conclusion

            Plaintiff Dale Kim’s Motion to Set Aside Order for No Appearance for Debtor Examination and Reopen is DENIED.

Judicial Assistant is directed to give notice.