Judge: Mark E. Windham, Case: 20STLC01755, Date: 2023-04-17 Tentative Ruling

Case Number: 20STLC01755    Hearing Date: April 17, 2023    Dept: 26

PROCEEDINGS:     MOTION TO VACATE ENTRY OF DEFAULT AND DEFAULT JUDGMENT

MOVING PARTY:   Defendant Tony Hung Tong

RESP. PARTY:         Plaintiff Jahonna Bradford

MOTION TO VACATE ENTRY OF DEFAULT AND DEFAULT JUDGMENT

(CCP § 473(b), equity)

SERVICE: 

[X] Proof of Service Timely Filed (CRC 3.1300) OK

[X] Correct Address (CCP 1013, 1013a) OK

[X] 16/21 Day Lapse (CCP 12c and 1005 (b)) OK

SUMMARY OF COMPLAINT: Action for motor vehicle negligence.

RELIEF REQUESTED: Vacate entry of default and default judgment due to Defendant not realizing the Summons was legitimate. Defendant has been wrongly identified in this action and believed the Summons was a scam/fake.

OPPOSITION: The Motion is untimely under Code of Civil Procedure section 473, subdivision (b). Also, throwing the lawsuit away instead of giving the papers to Defendant’s insurance company was not excusable. Defendant does not address what they did with the request for entry of default and request for judgment, which were also sent to the service address.

REPLY: Plaintiff has not shown that ignoring the lawsuit was not reasonable or that they will be prejudiced by the default and judgment being vacated.   

TENTATIVE RULING:

Defendant Tony Hung Tong’s Motion to Vacate Entry of Default and Default Judgment is DENIED.

ANALYSIS:

Plaintiff Jahonna Bradford (“Plaintiff”) filed the instant action for motor vehicle negligence against Defendant Tony Hung Tong (“Defendant”) on February 24, 2020. Following Defendant’s failure to file a responsive pleading, the Court entered their default on September 15, 2020, and default judgment on March 19, 2021.

Defendant filed the instant Motion to Vacate Default and Default Judgment on March 2, 2023. Plaintiff filed an opposition on April 4, 2023 and Defendant replied on April 10, 2023.

Discussion

Defendant moves to vacate the entry of default and default judgment pursuant to Code of Civil Procedure section 473, subdivision (b) or on equitable grounds. The Court will consider each basis.

Code of Civil Procedure section 473, subdivision (b)

Under this statute, an application for relief must be made no more than six months after entry of the order from which relief is sought and must be accompanied by an affidavit of fault attesting to the mistake, inadvertence, surprise or neglect of the moving party or its attorney. (Code Civ. Proc., § 473, subd. (b); English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 143.) The motion must also be accompanied by a copy of the moving defendant’s proposed pleading. (Code Civ. Proc., § 473, subd. (b).) When based on an attorney affidavit of fault, the relief sought must be granted if the statutory requirements are satisfied. (Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 612.) When brought pursuant to the provision for discretionary relief based on party fault, the request must have been filed within a reasonable amount of time.

The Motion, which is brought based on Defendant’s fault, is not timely under this statute. Default was entered on September 15, 2020, which was more than two years ago. The request for relief under Code of Civil Procedure section 473, subdivision (b) is denied.

Equitable Grounds

To qualify for equitable relief based on extrinsic mistake, which exists when circumstances extrinsic to the litigation have unfairly cost a party a hearing on the merits, the defendant must demonstrate: (1) “a meritorious case”; (2) “a satisfactory excuse for not presenting a defense to the original action”; and (3) “diligence in seeking to set aside the default once the fraud [or mistake] had been discovered.” (Mechling v. Asbestos Defendants (2018) 29 Cal.App.5th 1241, 1245-1246 (citing In re Marriage of Stevenot (1984) 154 Cal.App.3d 1051, 1071).)

Defendant submits a declaration explaining that while they were served with the Summons and Complaint in 2020, they believed it to be a scam and threw away the papers. (Motion, Tong Decl., ¶5.) This was a reasonable belief because, according to Defendant, they had never been to the city where the accident occurred, Pomona, California, nor had their vehicle been involved in any accident in Pomona. (Id. at ¶¶2-5.) Defendant declares they did not realize the lawsuit was real until January 2023 when informed of the default judgment by their insurance company. (Id. at ¶6.) Defendant also states that they have a legitimate defense based on mistaken identity, as set forth in the proposed Answer. (Motion, McEwan Decl., Exh. C.)

Plaintiff’s opposition argues that throwing the lawsuit away was inexcusable. The opposition challenges Defendant’s mistaken-identity argument by arguing that the police investigation revealed the vehicle involved in the accident was registered to Defendant. (Opp., Marchiondo Decl., ¶9.) However, the only evidence of this is a hearsay statement from Plaintiff’s counsel. Plaintiff further points out that Defendant does not specifically address receipt or nonreceipt of the many documents that followed after service of the lawsuit, including the request for entry of default mailed on September 14, 2020, the request for judgment mailed on January 26, 2021, and the notice of entry of judgment mailed on March 11, 2021. Defendant had an opportunity to address why they also ignored these documents in the Reply, but fails to do so. Instead, Defendant argues that Plaintiff will not be prejudiced if the default and judgment are vacated. This does not demonstrate that Defendant’s decision to ignore all the documents related to this lawsuit was reasonable. It also overcomes Defendant’s initial showing of diligence in moving for relief.

Without a showing that Defendant reasonably ignored the lawsuit after service of the Summons and Complaint, the requests for default and judgment, and the notice of judgment, the Court finds that equitable relief is not proper.

Conclusion

Defendant Tony Hung Tong’s Motion to Vacate Entry of Default and Default Judgment is DENIED.

Plaintiff to give notice.