Judge: Lisa R. Jaskol, Case: 21STCV29148, Date: 2023-12-29 Tentative Ruling

Case Number: 21STCV29148    Hearing Date: December 29, 2023    Dept: 28

Having considered the moving, opposing and reply papers, the Court rules as follows. 

BACKGROUND 

On August 9, 2021, Plaintiffs Pamela Lynn Benjamin (“Benjamin”) and Mikeah Shares (“Shares”) filed this action against Defendants Juan Manuel Barajas Dominguez (“Defendant”) and Does 1-10 for motor vehicle tort. 

On November 17, 2021, Defendant filed an answer. 

On February 6, 2023, a court trial began in Defendant’s absence.  After hearing Plaintiffs’ testimony and argument, the Court ruled that judgment would be entered for Plaintiffs.  The Court awarded Benjamin $50,000 and awarded Shares $20,000 and ordered Plaintiffs to submit proposed judgments within 10 days. 

On March 28, 2023, the Court signed judgments awarding Benjamin $50,000 and awarding Shares $20,000. 

On March 28, 2023, the Court mailed notices of entry of the judgments to Defendant. 

On April 24, 2023, Defendant appealed the judgments.  On July 19, 2023, the Court of Appeal dismissed the appeal. 

On September 28, 2023, Defendant filed a motion to set aside the judgments under Code of Civil Procedure section 473, subdivision (b). 

PARTIES’ REQUESTS 

Defendant asks the Court to vacate the entry of the judgments.

 Plaintiffs ask the Court to deny the motion. 

LEGAL STANDARD 

          Code of Civil Procedure section 473, subdivision (b), provides in part: 

“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. . . .” 

(Code Civ. Proc., § 473, subd. (b).) 

DISCUSSION 

          A defendant does not satisfy the timeliness requirement of Code of Civil Procedure section 473, subdivision (b) (“section 473(b)”) merely by filing a motion to vacate judgment within six months of the judgment.  “Defendant’s motion for relief under [section 473(b)] must also be made within a ‘reasonable time’ after the discovery of the default: i.e., defendant must act diligently in seeking relief.  This is, in effect, a separate, discretionary time limitation on granting relief.”  (L. Edmon & C. Karnow, Cal. Practice Guide: Civil Procedure Before Trial (Rutter 2023) ¶ 5:374, p. 5-112.)  “If there is a substantial delay between discovery of the default and defendant’s filing a motion for relief under [section 473(b)], defendant must show a reasonable excuse for the delay.  Otherwise, regardless of the ’mistake’ or ‘neglect’ causing entry of the default originally, defendant’s application for relief will be denied.”  (Id., ¶ 5:374, p. 5-112.) 

          Here, the Court entered the judgments on March 28, 2023.  The same day, the Court mailed notice of entry of the judgments to Defendant.  

On April 24, 2023, Defendant filed a notice of appeal, showing he had learned about the judgments.  On or about June 2, 2023, Defendant retained counsel.  (Nguyen Dec. ¶ 15.)  On July 19, 2023, the Court of Appeal dismissed the appeal. 

Despite knowing about the adverse judgments since at least April 24, 2023, Defendant did not file a motion under section 473(b) until September 28, 2023.  Defendant has not provided a reasonable excuse for the delay.  The Court finds the motion is untimely and denies it.  

CONCLUSION 

The Court DENIES Defendant Juan Manuel Barajas Dominguez’s motion to vacate the March 28, 2023 judgments. 

Moving party is ordered to give notice of this ruling. 

Moving party is ordered to file the proof of service of this ruling with the Court within five days.