Judge Mark E. Windham, Case 20STLC04320 2022-07-28 Tentative Ruling

Judge: Mark E. Windham, Case: 20STLC04320, Date: 2022-07-28 Tentative Ruling

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Case Number: 20STLC04320 Hearing Date: July 28, 2022 Dept: 26

MOTION TO VACATE DEFAULT AND DEFAULT

(CCP § 473.5)

TENTATIVE RULING:

Defendant Omar Gonzalez’s Motion to Vacate Default and Default Judgement is CONTINUED TO OCTOBER 27, 2022 AT 10:00 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE. BY OCTOBER 5, 2022, DEFENDANT IS TO FILE AND SERVE SUPPLEMENTAL PAPERS WITH THE MISSING EXHIBITS AND FILE PROOF OF SERVICE OF ALL THE MOTION PAPERS AND NOTICE OF HEARING ON PLAINITFF. FAILURE TO COMPLY WITH THIS ORDER MAY RESULT IN THE MOTION BEING DENIED

ANALYSIS:

Plaintiff United Financial Casualty Company (“Plaintiff”) filed the instant action against Defendant Omar Gonzalez (“Defendant”) on May 20, 2020. Following Defendant’s failure to respond to the Complaint, the Court entered default on October 13, 2020 and default judgment on October 21, 2020.

Defendant filed the instant Motion to Vacate Default and Default Judgment on June 29, 2022. No opposition has been filed to date.

Discussion

As an initial matter, the Motion is not accompanied by a proof of service demonstrating notice of the motion and 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.) The Motion cannot be granted until proper notice has been provided to Plaintiff.

Substantively, the Motion is brought pursuant to Code of Civil Procedure section 473.5, subdivision, which provides in relevant part:

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 was timely filed less than two years after entry of default judgment and was concurrently filed with Defendant’s Answer. The Motion is also accompanied by an affidavit in which Defendant declares that service of the Summons and Complaint did not result in actual notice of this action. (Motion, Gonzalez Decl., p. 5:4-12.) The declaration states that Defendant did not reside at the service address and only received notice of this action after the DMV suspended his license. (Id. at p. 5:12-15.) This suggests that Defendant’s lack of notice was not caused by avoidance of service or inexcusable neglect, however, the exhibits cited in support of the Motion are not attached. (Id. at p. 7.) Without the supporting exhibits to corroborate Defendant’s declaration, the Court cannot find that relief under Code of Civil Procedure section 473.5 is proper.

Conclusion

Therefore, Defendant Omar Gonzalez’s Motion to Vacate Default and Default Judgement is CONTINUED TO OCTOBER 27, 2022 AT 10:00 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE. BY OCTOBER 5, 2022, DEFENDANT IS TO FILE AND SERVE SUPPLEMENTAL PAPERS WITH THE MISSING EXHIBITS AND FILE PROOF OF SERVICE OF ALL THE MOTION PAPERS AND NOTICE OF HEARING ON PLAINITFF. FAILURE TO COMPLY WITH THIS ORDER MAY RESULT IN THE MOTION BEING DENIED.

Court clerk to give notice.