Judge Mark E. Windham, Case Number: 21NWLC17808, Date: 2023-08-31 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.

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On April 30, 2021, Plaintiff Infinite Sunshine 2015-1, LLC (“Plaintiff”) filed the instant action for breach of contract and common counts against Defendant Nery M. Mejia (“Defendant”). Defendant filed an answer on June 18, 2021. The case came for trial on August 11, 2022, at which time Defendant did not appear. (Minute Order, 08/11/22.) Following Plaintiff’s showing, the Court entered judgment in its favor. (Ibid.)

Defendant filed the instant Motion to Vacate Judgment on March 8, 2023. Plaintiff filed an opposition on March 27, 2023. The case was then transferred to the limited jurisdiction court on May 1, 2023. (Minute Order, 05/01/23.)

Defendant brings this motion pursuant to 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 moving party’s mistake, inadvertence, surprise or neglect. (Code Civ. Proc., § 473, subd. (b); English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 143.) When based on attorney fault with respect to entry of default, default judgment, or involuntary dismissal, a timely request for relief must be granted. (Code Civ. Proc., § 473, subd. (b).) 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 was not timely filed within six months (calculated as 182 days) of entry of judgment. (See Davis v. Thayer (1980) 113 Cal.App.3d 892, 903.) Judgment was entered on August 11, 2022, but this motion was filed 209 days later, on March 8, 2023. The six-month deadline is jurisdictional and not subject to tolling. (Manson, Iver & York v. Black (2009) 176 Cal.App.4th 36, 42.) Therefore, the Court has no authority to vacate the judgment under Code of Civil Procedure section 473, subdivision (b).

Even if the Court were to consider the merits, the motion has not shown a basis for relief. Mandatory relief under Code of Civil Procedure section 473, subdivision (b) is only available for defaults, default judgments, and dismissals. (Code Civ. Proc., § 473, subd. (b).) A defendant’s failure to appear for trial after answering the complaint is not a default nor a dismissal. (Noceti v. Whorton (2014) 224 Cal.App.4th 1062, 1065-1066.) For discretionary relief under the moving statute, the moving party must show mistake, inadvertence, surprise, or excusable neglect. (Code Civ. Proc., § 473, subd. (b).) Defense counsel contends it was surprised because it did not receive notice of the trial date, however, Plaintiff served Defendant with notice of the order to show cause / trial date originally set for May 6, 2023. (Proof of Substitute Service, filed 05/27/23, ¶2.) Yet Defendant did not appear on that date. (Minute Order, 05/06/22.) Defendant was also given notice of the trial continuance to August 11, 2022 following Plaintiff’s service of its trial brief on August 1, 2022. (Opp., Alvarado Decl., Exh. 4.) Defense counsel, therefore, has not shown they lacked notice of the trial date such that the failure to appear can be deemed the result of mistake, inadvertence, surprise, or excusable neglect.

Based on the foregoing, Defendant Nery M. Mejia’s Motion to Vacate Judgment Entry is DENIED.