Judge Lee W. Tsao, Case Number: 19NWCV00820, Date: 2023-09-20 Tentative Ruling

Judge: Lee W. Tsao, Case: 19NWCV00820, Date: 2023-09-20 Tentative Ruling

Case Number: 19NWCV00820 Hearing Date: April 11, 2024 Dept: C

BLAINE HOLDING & DEVELOPMENT, LLC v. VIVERA PHARMACEUTICALS, INC.

CASE NO.: 19NWCV00820

HEARING: 04/11/24

Defendant LOS ANGELES PARTYWORKS, INC.’s Motion to Set Aside Default and Default Judgment is DENIED.

Opposing Party to give Notice.

No Reply filed as of April 8, 2024. Due by April 4, 2024. (CCP §1005(b).)

This action for unlawful detainer was filed by Plaintiff/Judgment Creditor BLAINE HOLDING & DEVELOPMENT, LLC (“Plaintiff”) on September 15, 2021. Default was entered against Defendant LOS ANGELES PARTYWORKS, INC. (“Defendant”) on November 12, 2019, and Default Judgment was entered against Defendant on September 15, 2021.

This Motion to Set Aside the Default and Default Judgment was filed on February 20, 2024—over two years after Default Judgment was entered. Defendant argues that the default and default judgment should be set aside pursuant to CCP §§473.5, 473(d), and 338(d).

In Opposition, Plaintiff/Judgment Creditor argues that Defendant has failed to carry their burden of demonstrating that it is entitled to relief from default.

CCP §473.5

CCP §473.5 requires that the motion be filed within a reasonable time, but in no event exceeding the earlier of: (i) two years after entry of a default judgment; or (ii) 180 days after service on the party of a written notice that a default or default judgment had been entered.

The Motion is untimely under CCP §473.5. Default Judgment was entered on September 15, 2021. The two-year deadline for filing this Motion was on or about September 15, 2023. The Motion was not filed until February 20, 2024. The two-year statutory time period has lapsed.

Relief under CCP §473.5 is time-barred.

CCP §473(d)

At any time, “[t]he court…may, on motion of either party after notice to the other party, set aside any void judgment or order.” (CCP §473(d).)

Defendant offers no argument or evidence to suggest that the default judgment is void on its face.

“[A] judgment that, though valid on its face, is void for lack of proper service, the courts have adopted by analogy the statutory period for relief from a default judgment” provided by CCP §473.5. (Rogers v. Silverman (1989) 216 Cal.App.3d 1114, 1120-1124; see also Trackman v. Kenney (2010) 187 Cal.App.4th 175, 180-181.) As indicated above, CCP §473.5 set the time limit as requiring the motion to be filed within a reasonable time, but in no event exceeding the earlier of either two years after entry of default judgment or 180 days after service on the party of a written notice that a default or default judgment has been entered.

Consequently, for reasons articulated above, relief is time-barred under CCP §473(d).

Equitable Relief

However, even where statutory relief is unavailable, a trial court has inherent, equitable power to set aside a judgment on the ground of extrinsic fraud or mistake. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981.) In order to obtain such relief, the party in default must show: (1) a meritorious defense; (2) a satisfactory excuse for not presenting a defense to the original action; and (3) diligence in seeking to set aside the default once it was discovered. (Id. at 982.)

Defendant proffers no evidence of extrinsic fraud or mistake to show that Plaintiff deliberately concealed this action from Defendant, or that Defendant should be excused from its failure to respond to this action. (see Marinaccio Decl., ¶¶5-9.) Equitable relief is not available.

The Motion is DENIED.