Judge Lee W. Tsao, Case Number: 19NWCV00885, Date: 2024-04-16 Tentative Ruling

Judge: Lee W. Tsao, Case: 19NWCV00885, Date: 2024-04-16 Tentative Ruling

Case Number: 19NWCV00885 Hearing Date: April 25, 2024 Dept: C

LAKEVIEW LOAN SERVICING, LLC v. HERNANDEZ

CASE NO.: 19NWCV00885

HEARING: 04/25/24

Defendant NATALIE HERNANDEZ’s Motion to Set Aside Default is GRANTED. Defendant NATALIE HERNANDEZ is ORDERED to FILE and SERVE a Proposed Answer by no later than 5 calendar days from the date of the Court’s issuance of this Order.

Moving Party to give Notice.

This is a foreclosure action. Defendant Natalie Hernandez moves to set aside the default and default judgment entered against her pursuant to CCP §§ 473(b), 473.5, 173(d), and/or CCP §§128(a)(8).

This matter was originally set for hearing and heard on April 16, 2024. At the April 16, 2024 hearing, this Court issued the following Order: “Defendant has not attached a copy of the answer to the motion to set aside default…. Therefore the hearing is CONTINUED to April 25, 2024…. Defendant is ordered to file and serve a copy of the answer no later than April 23, 2024.” (04/16/24 M.O.)

As of the end of business on April 23, 2024, no proposed Answer has been filed or lodged with the Court.

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.

CCP §§473(b) and 473.5

“The court may, upon any terms as may be just, 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. 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.” (emphasis added.) (CCP §473(b).)

CCP §473.5 sets the time limit as requiring the motion to 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. (CCP §473.5(a).) “Notice of motion to set aside the 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.” (CCP § 473.5(b).)

Here, there is no motion or other pleading attached to the moving papers. Moreover, as indicated above, as of the end of business on April 23, 2024, no proposed answer or pleading has been filed with this Court. The terms of CCP §§473(b) and 473.5(b) are mandatory, compliance is not optional. Relief cannot be granted under CCP §§473(b) or 473.5.

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.)

Here, default was entered on February 21, 2020 and default judgment was entered on February 2, 2024. This instant Motion was filed on October 9, 2023 (after entry of default, but before default judgment was entered). Because Defendant’s Motion was pending when default judgment was entered on February 2, 2024, it appears that the default judgment was improperly entered and should be set aside. The policy of hearing cases on their merits is well-established. (See e.g. Berman v. Klassman (1971) 17 Cal.App.3d 900.) Given the liberality associated with Motions to Set Aside Defaults, the Motion is GRANTED.