Judge Mark E. Windham, Case Number: 18STLC04990, Date: 2024-02-14 Tentative Ruling

If you desire to submit on the tentative ruling, you may do so by e-mailing Dept. 26 at the Spring Street Courthouse until the morning of the motion hearing.

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Defendant Richard B. Pallack’s Motion to Vacate Default and Default Judgment is GRANTED.

ORDER TO SHOW CAUSE RE STATUS OF CASE IS SET FOR FEBRUARY 28, 2024 AT 9:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE. COUNSEL OF RECORD FOR BOTH PARTIES ARE ORDERED TO APPEAR.

On April 2, 2018, Plaintiff City of Los Angeles, acting by and through the Los Angeles Department of Water and Power (“Plaintiff”) filed this action against Richard Pallack for damages in the amount of $24,713.13. Defendant filed his Answer on May 11, 2018. On January 6, 2021, Defendant failed to appear at the scheduled non-jury trial. (Minute Order, 01/06/21.) The Court vacated the trial date and set an Order to Show Cause re Failure to Secure Default/Default Judgment/Dismissal. (Ibid.) On January 20, 2021, Plaintiff requested default be entered against Defendant and the clerk entered default the same day.

On April 13, 2021, the Court entered default judgment against Defendant and in favor of Plaintiff in the total amount of $36,628.00. On October 12, 2021, Defendant filed the instant Motion to Set Aside Default and Default Judgment. Plaintiff filed an opposition on March 24, 2022. Defendant made numerous requests to continue the hearing date. On December 11, 2023, the Court on its own motion continued the hearing to January 25, 2024.

On January 25, 2024, the case was transferred from Department 25 of the Spring Street Courthouse to Department 26 of the Spring Street Courthouse and the hearing was reset for February 14, 2024. (Minute Order, 01/25/24.) Counsel for Defendant was ordered to give notice and file proof of service within two days. (Ibid.) Notice of the continuance was filed on the same date.

Defendant moves to vacate the entry of default pursuant to Code of Civil Procedure section 473, subdivision (b), section 473.5, or on equitable grounds. However, the Court, by virtue of its inherent authority, vacates the entry of default and default judgment as void. The Court could not have entered Defendant’s default for failing to appear at trial: “Simply stated, the court had no power to order the entry of appellants’ default when they failed to appear for trial. (Heidary v. Yadollahi (2002) 99 Cal.App.4th 857, 862 [citing Wilson v. Goldman (1969) 274 Cal.App.2d 573].)

Section 585 of the Code of Civil Procedure does not authorize the entry of any default in cases where an answer is on file, whether the defendant does or does not appear at the time the action is called for hearing. (Warden v. Lamb, 98 Cal.App. 738, 741, 277 P. 867; Code Civ.Proc. s 585; Barberia v. Independent Elevator Co., 133 Cal.App.2d 657, 659, 285 P.2d 91.) Where the defendant who has answered fails to appear for trial ‘the plaintiff's sole remedy is to move the court to proceed with the trial and introduce whatever testimony there may be to sustain the plaintiff’s cause of action.’ (Warden v. Lamb, Supra, 98 Cal.App. 741, 277 P. 868.) In such case a plaintiff is entitled to proceed under the provisions of Code of Civil Procedure, section 594, subd. 1, and he may do so in the absence of the defendant provided the defendant has been given at least 5 days notice of the trial. Section 594 does not authorize the entry of the default in the event the defendant fails to appear, and a hearing held pursuant to that section under such circumstances is uncontested as distinguished from a default hearing. (See Ahmanson Bank & Trust Co., v. Tepper, 269 A.C.A. 394, 401, 74 Cal.Rptr. 774; Code Civ.Proc. ss 485, 494; Warden v. Lamb, Supra, 98 Cal.App. 738, 741, 277 P. 867.)

Where a defendant has filed an answer, neither the clerk nor the court has the power to enter a default based upon the defendant’s failure to appear at trial, and a default entered after the answer has been filed is void (Warden v. Lamb, Supra, 741, 277 P. 867; Barbaria v. Independent Elevator Co., Supra, 133 Cal.App.2d 657, 659, 285 P.2d 91; Miller v. Cortese, 110 Cal.App.2d 101, 104—105, 242 P.2d 84), and is subject to expungement at any time either by motion made pursuant to Code of Civil Procedure, section 473 or by virtue of the court's inherent power to vacate a judgment or order void on its face. (Potts v. Whitson, 52 Cal.App.2d 199, 125 P.2d 947; Reher v. Reed, 166 Cal. 525, 528, 137 P. 263; Baird v. Smith, 216 Cal. 408, 409—411, 14 P.2d 749.)

Based on the foregoing, Defendant Richard B. Pallack’s Motion to Vacate Default and Default Judgment is GRANTED.

ORDER TO SHOW CAUSE RE STATUS OF CASE IS SET FOR FEBRUARY 28, 2024 AT 9:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE. COUNSEL OF RECORD FOR BOTH PARTIES ARE ORDERED TO APPEAR.