Judge: Lisa R. Jaskol, Case: BC651598, Date: 2023-08-08 Tentative Ruling

Case Number: BC651598    Hearing Date: August 8, 2023    Dept: 28

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

BACKGROUND 

On February 27, 2017, Plaintiff Vernettie Daniels (“Plaintiff”) filed this action against Defendant Anthony M. Moss of Success Construction and Development Corporation LLC for general negligence. 

On May 31, 2027, the Court sustained Defendant’s demurrer with leave to amend. 

On June 30, 2017, Plaintiff filed a First Amended Complaint against Defendant Anthony M. Moss d.b.a. Success Construction Development Corp. LLC ("Defendant") alleging breach of contract, common counts and fraud. 

On July 13, 2018, the clerk entered default against Defendant. 

On September 30, 2021, the Court entered default judgment against Defendant in the amount of $117,167.26.  On October 4, 2022, the Court entered an amended judgment. 

On May 1, 2023, Defendant filed a motion to vacate the judgment to be heard on August 8, 2023. On June 26, 2023, Plaintiff filed an opposition. On July 5, 2023, Defendant filed a reply. 

No trial date is currently scheduled. 

PARTIES’ REQUESTS 

Defendant requests that the Court set aside the entry of default judgment. 

Plaintiff requests that the Court deny the motion. 

LEGAL STANDARD 

“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. However, in the case of a judgment, dismissal, order, or other proceeding determining the ownership or right to possession of real or personal property, without extending the six-month period, when a notice in writing is personally served within the State of California both upon the party against whom the judgment, dismissal, order, or other proceeding has been taken, and upon his or her attorney of record, if any, notifying that party and his or her attorney of record, if any, that the order, judgment, dismissal, or other proceeding was taken against him or her and that any rights the party has to apply for relief under the provisions of Section 473 of the Code of Civil Procedure shall expire 90 days after service of the notice, then the application shall be made within 90 days after service of the notice upon the defaulting party or his or her attorney of record, if any, whichever service shall be later. No affidavit or declaration of merits shall be required of the moving party.” 

(Code Civ. Proc., § 473, subd. (b).) 

DISCUSSION 

Defendant filed his motion for relief more than six months after entry of the default judgment. The application is untimely. 

Defendant argues the Court should vacate the judgment because he “was not aware of this Default Judgment hearing against [him] and [he] did not appear at the hearing because [he] never received notice of this hearing and was not properly served.”  Defendant “first learned of the entry of judgment against [him] on February 27, 2023 to appear [sic] when [he] was served an Order for Appearance and Examination and Civil Subpoena to appear on March 28, 2023.” 

“The nonreceipt of the notice [of application for entry of default] shall not invalidate or constitute ground for setting aside any judgment.”  (Code Civ. Proc., § 587.)  Defendant does not assert he was unaware of the lawsuit or Plaintiff’s claimed damages before the Court entered judgment. 

The Court denies the motion. 

CONCLUSION 

The Court DENIES Defendant Anthony M. Moss d.b.a. Success Construction Development Corp. LLC’s motion to vacate the default judgment. 

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.