Judge: Mark E. Windham, Case: 19STLC08474, Date: 2023-01-05 Tentative Ruling
Case Number: 19STLC08474 Hearing Date: January 5, 2023 Dept: 26
MOTION TO VACATE ENTRY OF DEFAULT AND
DEFAULT JUDGMENT
(CCP § 473.5)
TENTATIVE RULING:
Defendant Richard Rosenthal’s
Motion to Vacate Entry of Default and Default Judgment is CONTINUED TO APRIL 6,
2023 AT 10:00 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE. BY MARCH 23,
2023, DEFENDANT IS TO FILE A SUPPLEMENTAL MEMORANDUM OF POINTS AND AUTHORITIES,
AND SUPPORTING DECLARATION. PROOF OF SERVICE OF THE ORIGINAL MOTION AND
SUPPLEMENTAL PAPERS ON PLAINTIFF IS ALSO TO BE FILED BY MARCH 23, 2023. FAILURE
TO COMPLY WITH THE COURT’S ORDER MAY RESULT IN THE MOTION BEING DENIED.
ANALYSIS:
Plaintiff Nellie C. Saadat (“Plaintiff”)
filed the instant action for breach of contract, fraud, and related claims
against Defendant Richard Rosenthal (“Defendant”) on September 16, 2019. Following
Defendant’s failure to file a responsive pleading, the Court entered their
default on November 13, 2019, and default judgment on January 17, 2020.
Defendant filed the instant
Motion to Vacate Default and Default Judgment on December 12, 2022. No
opposition has been filed to date.
Discussion
First,
the Motion is not accompanied by a proof of service demonstrating service of
the motion papers and notice of hearing on Plaintiff. Failure to give notice of
a motion is not only a violation of the statutory requirements but of due
process. (Code Civ. Proc., § 1005; Jones v. Otero (1984) 156 Cal.App.3d
754, 757.)
Second, the Motion is not accompanied by the required
memorandum of points and authorities. “The memorandum must contain a statement
of facts, a concise statement of the law, evidence and arguments relied on, and
a discussion of the statutes, cases, and textbooks cited in support of the
position advanced.” (Cal. Rules of Court, Rule 3.1113(b).) The Motion refers
only to Code of Civil Procedure section 473.5 in the caption but provides no
explanation of this statute, or how the purported facts regarding service at
the incorrect address require relief under this statute. In fact, the deadline
for relief under Code of Civil Procedure section 473.5 is two years from entry
of default judgment, making this Motion six-months late. (Code Civ. Proc., §
473.5, subd. (a).) In comparison, a request for relief under Code of Civil
Procedure section 473, subdivision (d) has no time limit.
Finally, while the Motion is supported by exhibits, it lacks
a declaration attested to as required by Code of Civil Procedure section 2015.5.
Conclusion
Defendant Richard Rosenthal’s
Motion to Vacate Entry of Default and Default Judgment is CONTINUED TO APRIL 6,
2023 AT 10:00 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE. BY MARCH 23,
2023, DEFENDANT IS TO FILE A SUPPLEMENTAL MEMORANDUM OF POINTS AND AUTHORITIES,
SUPPORTING DECLARATION. PROOF OF SERVICE OF THE ORIGINAL MOTION AND
SUPPLEMENTAL PAPERS ON PLAINTIFF IS ALSO TO BE FILED BY MARCH 23, 2023. FAILURE
TO COMPLY WITH THE COURT’S ORDER MAY RESULT IN THE MOTION BEING DENIED.
Court clerk to give notice.