Judge: Lee S. Arian, Case: 23STCV02641, Date: 2024-11-15 Tentative Ruling

Case Number: 23STCV02641    Hearing Date: November 15, 2024    Dept: 27

Hon. Lee S. Arian, Dept 27 

MOTION TO VACATE

Hearing Date: 11/15/24¿ 

CASE NO./NAME: 23STCV02641 STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY vs JACK VISTA

Moving Party: Defendant Jack Vista 

Responding Party: Plaintiff¿ 

Notice: Sufficient

Ruling: DENIED

Legal Standard

California Code of Civil Procedure Section 473.5 provides for setting aside a default "when service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action." (Section 473.5, subd. (a).) 

A party who has not received such notice "may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action." (Ibid.) 

The notice of motion shall be served and filed within a reasonable time, but in no event exceeding the earlier of: (i) two years after entry of a default judgment against him or her; or (ii) 180 days after service on him or her of a written notice that the default or default judgment has been entered. (Ibid.) 

(b) A notice of motion to set aside a default or default judgment and for leave to defend the action shall designate as the time for making the motion a date prescribed by subdivision (b) of Section 1005, and it shall be accompanied by an affidavit showing under oath that the party's lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect. The party shall serve and file with the notice a copy of the answer, motion, or other pleading proposed to be filed in the action. 

(c) Upon a finding by the court that the motion was made within the period permitted by subdivision (a) and that his or her lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect, it may set aside the default or default judgment on whatever terms as may be just and allow the party to defend the action. 

Discussion

On February 7, 2023, Plaintiff filed this action against Defendant Jack Vista. On March 3, 2024, this Court entered a default judgment against Defendant. Defendant now moves to set aside the default judgment on the basis that Defendant had no actual notice of the action.

This motion is defective on several grounds. First, the motion lacks an affidavit or declaration from Defendant Jack Vista demonstrating his “lack of actual notice in time to defend the action was not due to avoidance of service or inexcusable neglect,” as required by Section 473.5, subd. (b). The only declaration submitted is from Defendant’s attorney.

Furthermore, Defendant has not attached a copy of his answer as required by Section 473.5, subd. (b).

Moreover, and likely most significantly, notice of entry of judgment was served on March 7, 2024, but the motion to set aside the judgment was not filed until September 19, 2024—more than six months after service of the entry of judgment. This motion is thus untimely.

For these reasons, the motion to set aside the default judgment is Denied.

PLEASE TAKE NOTICE:

If a party intends to submit on this tentative ruling, the party must send an email to the court at sscdept27@lacourt.org with the Subject line “SUBMIT” followed by the case number.  The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.

Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.  You should assume that others may appear at the hearing to argue.

If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.  After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave.