Judge: Mark E. Windham, Case: 19STLC08474, Date: 2023-04-17 Tentative Ruling

Case Number: 19STLC08474    Hearing Date: April 17, 2023    Dept: 26

PROCEEDINGS:     MOTION TO VACATE ENTRY OF DEFAULT AND DEFAULT JUDGMENT

MOVING PARTY:   Defendant Richard Rosenthal

RESP. PARTY:         Plaintiff Nellie C. Saadat

MOTION TO VACATE ENTRY OF DEFAULT AND DEFAULT JUDGMENT

(CCP § 473.5)

SERVICE: 

[X] Proof of Service Timely Filed (CRC 3.1300) NO

[X] Correct Address (CCP 1013, 1013a) NO

[X] 16/21 Day Lapse (CCP 12c and 1005 (b)) NO

SUMMARY OF COMPLAINT: Action for breach of contract, fraud, and related claims.

RELIEF REQUESTED: Vacate entry of default due to lack of service of the Summons and Complaint on Defendant.

OPPOSITION: Plaintiff’s opposition is untimely because they were not properly served with the Motion. The Motion should also be denied because it is not accompanied by affidavits, authenticated exhibits, or a copy of Defendant’s proposed Answer. The Motion is also defective because it was filed after the 2-year deadline set forth in Code of Civil Procedure section 473.5.

SUPP. MOTION: The Motion is made under Code of Civil Procedure section 473, subdivision (d) on the grounds that Defendant was never served. Defendant has provided evidence that they had not lived at the service address since September 2016 and Plaintiff was aware of the change in address based on the judgment lien.

SUPP. OPPOSITION: Again, Plaintiff did not serve Defendant with a copy of the supplemental papers. The Motion does not show that Defendant’s lack of notice was not caused by avoidance of service or inexcusable neglect. Also, the exhibits are not authenticated. Finally, the Motion does not comply with the other requirements under Code of Civil Procedure section 473.5.

TENTATIVE RULING:

Defendant Richard Rosenthal’s Motion to Vacate Entry of Default and Default Judgment is CONTINUED TO JULY 17, 2023 AT 10:00 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE. BY JUNE 26, 2023, DEFENDANT IS TO FILE A SUPPLEMENTAL DECLARATION PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 2015.5 AND PROOF OF SERVICE OF ALL MOTION PAPERS ON PLAINTIFF. FAILURE TO COMPLY WITH THE COURT’S ORDER MAY RESULT IN THE MOTION BEING DENIED. PLAINTIFF MAY FILE A SUPPLEMENTAL OPPOSITION PURSUANT TO THE CODE OF CIVIL PROCEDURE.

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. Plaintiff filed an opposition on December 30, 2022. The Motion initially came for hearing on January 5, 2023, at which time the Court continued the hearing to allow Defendant to file and serve the original and supplemental motion papers. (Minute Order, 01/05/23.) Defendant filed supplemental papers on March 23, 2023. Plaintiff filed a supplemental opposition on April 6, 2023.

Discussion

As with the original Motion papers, the supplemental Motion is not accompanied by a proof of service demonstrating notice to Plaintiff. (Supp. Motion, filed 03/23/23.) Defendant is reminded that 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, while the supplemental Motion is now accompanied by the required memorandum of points and authorities, the supporting declaration is not attested as required by California law. Specifically, a declaration state it is true under penalty of perjury, and if executed within California, state the date and place of execution, or if executed at any place, within or outside of California, state the date of execution and that it is so certified or declared under the laws of the State of California. (Code of Civil Procedure section 2015.5.) Defendant must also authenticate the exhibits attached as required by the Evidence Code section 1400, et seq.

Plaintiff’s opposition continues to argue that the Motion fails to meet the requirements under Code of Civil Procedure section 473.5, without addressing the statute under which Defendant now moves, Code of Civil Procedure section 473, subdivision (d).

Conclusion

Based on the foregoing, Defendant Richard Rosenthal’s Motion to Vacate Entry of Default and Default Judgment is CONTINUED TO JULY 17, 2023 AT 10:00 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE. BY JUNE 26, 2023, DEFENDANT IS TO FILE A SUPPLEMENTAL DECLARATION PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 2015.5 AND PROOF OF SERVICE OF ALL MOTION PAPERS ON PLAINTIFF. FAILURE TO COMPLY WITH THE COURT’S ORDER MAY RESULT IN THE MOTION BEING DENIED. PLAINTIFF MAY FILE A SUPPLEMENTAL OPPOSITION PURSUANT TO THE CODE OF CIVIL PROCEDURE.

Court clerk to give notice.