Judge: Linda S. Marks, Case: 2022-01246829, Date: 2023-05-15 Tentative Ruling

1. Motion to Set Aside/Vacate Default filed by Matthew Thetford

The Motion to Set Aside Default filed by Defendant Matthew Thetford on December 16, 2022 is DENIED without prejudice.

There are several defects with the instant Motion.  First, as Plaintiffs point out, it was filed beyond the six-month period set forth in Code of Civil Procedure section 473(b).  Thus, to the extent it seeks relief under that section, it is untimely.

Second, the Motion is not accompanied by any proof of service.  Though Plaintiffs have filed a timely Opposition, which suggests that the Motion was properly served, the failure to file a proof of service is in violation of California Rules of Court, Rule 3.1300(c). 

Third, the Motion consists of a two-page Affidavit of Defendant Thetford with a notary public certificate at the third page.  The Affidavit is not accompanied by any memorandum of points and authorities, in violation of California Rules of Court, Rule 3.1113(a)-(b).  Notably, Rule 3.1113(a) provides that “[t]he court may construe the absence of a memorandum as an admission that the motion . . . is non meritorious and cause for its denial . . . .”

Fourth, the Motion does not expressly state upon which Defendants’ behalf it has been brought.  The Affidavit is executed by Defendant Thetford, so it is reasonable to conclude that the Motion seeks to set aside dismissal as to him.  However, the Affidavit uses the terms “we” and “our” without specifying who those terms include.  Thus, the Motion does not provide sufficient notice of the nature of the order being sought, in violation of California Rules of Court, Rule 3.1110(a). 

Lastly, the Motion was filed by Defendant Thetford himself.  However, in a Notice and Acknowledge of Receipt filed on April 26, 2022, it appears that Defendant Thetford was represented by attorney Mark D. Evans at the time this Motion was filed.  A Substitution of Attorney filed on December 23, 2022 indicates that Defendant Thetford is now represented by new counsel.  The filing of a motion by a party himself who is represented by counsel is improper.

For all of the foregoing reasons, the Court DENIES the Motion without prejudice.

The Court notes that Plaintiffs’ Opposition was also improperly served.  It was served directly on all Defendants rather than on Defendant Thetford’s counsel of record.  Plaintiffs were properly served with the Substitution of Attorney filed on December 23, 2022 and therefore had notice of Defendant Thetford’s new counsel.  Plaintiffs are admonished to properly serve all future documents requiring service and the failure to do so may result in the Court declining to consider any improperly served papers, as appropriate.

Plaintiffs to give notice.

2. Default Prove-Up Hearing