Judge Mark E. Windham, Case Number: 19STLC06649, Date: 2024-01-22 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.

The e-mail address is SSCdept26@lacourt.org

The heading on your e-mail should contain the case name, number, hearing date, and that you submit. The message should indicate your name, contact information, and the party you represent. Please note, the above e-mail address is to inform the court of your submission on the tentative ruling. All other inquiries will not receive a response.

If there are no appearances by either side and no submission on the Court's tentative ruling, the matter will be placed OFF CALENDAR.

Due to overcrowding concerns of COVID-19, all parties shall make every effort to schedule a remote appearance via LACourtConnect (https://my.lacourt.org/laccwelcome) for their next hearing. The parties shall register with LACourtConnect at least 2 hours prior to their scheduled hearing time.

Watson v. Bola Properties, LLC, et al.

VACATE DEFAULT AND DEFAULT JUDGMENT; QUASH SERVICE

(CCP §§ 473(b), 473.5)

Defendant Bola Properties, LLC’s Motion to Vacate Entry of Default and Default Judgment is DENIED.

On July 19, 2019, Plaintiff Willard Watson (“Plaintiff”) filed the instant action for civil rights violations against Defendant Bola Properties, LLC (“Defendant”). Following Defendants’ failure to file responsive pleadings, the Court entered its default on May 5, 2020. Default judgment was entered against Defendant on June 17, 2020. Plaintiff filed memorandum of costs after judgment on September 25, 2023, and a writ of execution on October 4, 2023.

Defendant filed the instant Motion to Set Aside Entry of Default and Default Judgment on December 14, 2023. Plaintiff filed an opposition on December 15, 2023 and Plaintiff replied on January 16, 2024.

Defendant moves to vacate the entry of default pursuant to Code of Civil Procedure sections 473, subdivision (d) and section 473.5.

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 serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action. 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).) Additionally, the motion “shall be accompanied by an affidavit showing under oath that the party’s lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect. The party shall serve and file with the notice a copy of the answer, motion, or other pleading proposed to be filed in the action.” (Code Civ. Proc., § 473.5, subd. (b).)

The Motion is not timely under this statute because two years since default judgment was June 17, 2022. The Motion was filed a year-and-a-half after the statutory deadline. Therefore, Defendant has not demonstrated that relief is proper under Code of Civil Procedure section 473.5.

Under Code of Civil Procedure section 473, subdivision (d), “[t]he court 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).) Defendant argues that the default and default judgment are void because it was not provided notice of either request. Specifically, prior to the time the request for entry of default and default judgment were mailed directly to Defendant, Plaintiff’s counsel was aware that Defendant was represented by counsel and had entered into a settlement agreement with Defendant. (Request for Entry of Default, filed 05/05/20, ¶6; Motion, Betty Decl., ¶¶2-3 and Exh. 1.)

While the Motion is not supported by any authority demonstrating that lack of notice of the request for entry of default renders the resulting entry of default void, Plaintiff’s reply points to the requirements of Code of Civil Procedure section 587:

An application by a plaintiff for entry of default under subdivision (a), (b), or (c) of Section 585 or Section 586 shall include an affidavit stating that a copy of the application has been mailed to the defendant's attorney of record or, if none, to the defendant at his or her last known address and the date on which the copy was mailed. If no such address of the defendant is known to the plaintiff or plaintiff's attorney, the affidavit shall state that fact.

No default under subdivision (a), (b), or (c) of Section 585 or Section 586 shall be entered, unless the affidavit is filed. The nonreceipt of the notice shall not invalidate or constitute ground for setting aside any judgment.

(Code Civ. Proc., § 587.) The declaration of mailing of the request for entry of default judgment shows it was mailed to Defendant’s address, not that of defense counsel. (Request for Default Judgment, filed 05/05/20, ¶6.) Plaintiff’s counsel, however, was clearly aware of defense counsel having reached a settlement agreement in 2019. (Motion, Betty Decl., Exh. 1.) The evidence shows, therefore, that the declaration of mailing was false. However, Plaintiff’s opposition demonstrates that nonreceipt of the request for default judgment “shall not invalidate or constitute ground for setting aside any judgment.” (Citing Standard Microsystems Corp. v. Winbond Electronics Corp. (2009) 179 Cal.App.4th 868, 899; Jackson v. Bank of America (1983) 141 Cal.App.3d 55, 59; Stevenson v. Turner (1979) 94 Cal.App.3d 315, 318.) Defendant’s contention that lack of actual notice is different from Plaintiff’s noncompliance with the statutory requirements for entry of default judgment does not help its position, however. Defendant points to no authority that Plaintiff’s noncompliance with the statutory requirements for the request for default judgment is grounds to deem the judgment void. Without a showing that the judgment is void, the Court cannot grant relief pursuant to Code of Civil Procedure section 473, subdivision (d).

Defendant Bola Properties, LLC’s Motion to Vacate Entry of Default and Default Judgment is DENIED.