Judge Lynne M. Hobbs, Case Number: 21STCV09941, Date: 2024-03-20 Tentative Ruling

Judge: Lynne M. Hobbs, Case: 21STCV09941, Date: 2024-03-20 Tentative Ruling

Case Number: 21STCV09941 Hearing Date: March 20, 2024 Dept: 30

WAYNE EDWARD HOLLOWAY vs AMIR ARSALLAN SASANI, et al.

TENTATIVE

Plaintiff’s motion to vacate default, default judgment, and reconsider is DENIED. Clerk to give notice.

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.” (Code Civ. Proc., § 473, subd. (b).) “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 other proceeding was taken.” (Ibid.) “The court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order.” (Code Civ. Proc., § 473, subd. (d).)

“When service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action, he or she may file a notice of motion to set aside the default or default judgment and for leave to defend the action.” (Code Civ. Proc., § 473.5, subd. (a).) “The notice of motion shall be served and filed within a reasonable time, but in no event exceeding the earlier of: (i) two years after entry of a default judgment against him or her; or (ii) 180 days after service on him or her of a written notice that the default or default judgment has been entered.” (Code Civ. Proc., § 473.5, subd. (a).)

It is well settled that appellate courts have always been and are favorably disposed toward such action upon the part of the trial courts as will permit, rather than prevent, the adjudication of legal controversies upon their merits. (Benjamin v. Dalmo Mfg. Co. (1948) 31 Cal.2d 523, 525.)

Discussion

In support of the motion, Plaintiff declares that he seeks “to cure the default judgment on this matter due to excusable neglect pursuant to CCP § 473, CCP § 473(b), and CCP § 473.5, and equitable tolling features.” (Holloway Decl., p. 6:5-7.)

Initially, the Court fails to see the relevance of Plaintiff’s reference to equitable tolling under CACI 457 (Motion, p.3:26-27), as such jury instructions concern the tolling of the statute of limitations for the filing of a complaint. Here, however, the complaint was dismissed pursuant to CCP § 581(b)(3) which provides that an action may be dismissed “[b]y the court, without prejudice, when no party appears for trial following 30 days’ notice of time and place of trial.” (Code Civ. Proc., § 581, subd. (b)(3).)

The Court also finds that Plaintiff has not stated grounds for relief under CCP § 473(b) as the declaration of Plaintiff is void of any mention of mistake, inadvertence, surprise, or excusable neglect. “In law and motion practice, factual evidence is supplied to the court by way of declarations.” (Calcor Space Facility v. Superior Court (1997) 53 Cal.App.4th 216, 224.) Moreover, Plaintiff’s motion is untimely pursuant to CCP § 473(b) as the instant motion was filed more than six months after this Court’s March 13, 2023 order of dismissal.

Furthermore, the Court finds that Plaintiff’s reliance on CCP § 473.5 is inapposite as neither default nor default judgment was entered against Plaintiff. Plaintiff’s citation to CCP § 473(d) is also inapposite as there is no indication that the Court’s March 13, 2023 should be voided.

To the extent that Plaintiff contests the decision of the Second District Court of Appeal, which dismissed his appeal due to Plaintiff’s default, this Court is not the appropriate forum to contest such issue.

Additionally, based on the certificate of service attached to the motion, the Court cannot ascertain whether Plaintiff himself, or a third-party, served Defendants with the instant motion. It would be inappropriate for Plaintiff to serve his own motion papers in this action. The Court must ensure that Defendants receive proper notice of the instant motion.

Lastly, the Court notes that Plaintiff is representing himself in pro per. Plaintiff, however, is still held to the same standard as an attorney. (Kobayashi v. Superior Court (2009) 175 Cal.App.4th 536, 543.)

Conclusion

Based on the foregoing, the Court DENIES Plaintiff’s motion to vacate default, default judgment, and reconsider.