Judge: Mark E. Windham, Case: 21STLC02831, Date: 2023-12-20 Tentative Ruling

Case Number: 21STLC02831    Hearing Date: February 20, 2024    Dept: 26

MOTION TO VACATE DEFAULT

Pius Joseph, APC v. Wood, et al.

TENTATIVE RULING:

Defendant Jessica Wood’s Renewed Motion to Vacate Entry of Default is DENIED.

ANALYSIS:

On April 9, 2021, Plaintiff Pius Joseph, a professional law corporation (“Plaintiff”) filed the instant interpleader action against Defendant Jessica Wood (“Defendant Wood”) and others. Plaintiff filed proof of personal service of the Summons and Complaint on Defendant Wood on June 14, 2021. When Defendant Wood failed to file a responsive pleading, Plaintiff obtained their default on August 25, 2022. An order to show cause regarding the request for default judgment is set for February 28, 2024.

On November 2, 2023, Defendant Wood filed a Motion to Vacate Entry of Default. Plaintiff filed an opposition on December 11, 2023. The Motion came for hearing on December 20, 2023, at which time Court took the matter under submission. (Minute Order, 12/20/23.) On December 27, 2023, the Court denied the Motion. (Minute Order, 12/27/23.)

Defendant filed another Motion to Vacate Entry of Default (“the Renewed Motion”) on January 25, 2024. Plaintiff filed an opposition on February 9, 2024.

Discussion

Defendant’s Renewed Motion to Vacate Default is deficient in a number of ways. First, the Motion is not accompanied by a proof of service demonstrating that Plaintiff was served with the moving papers or notice of hearing. 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.) It appears, however, that Plaintiff has waived the defective notice by filing and serving an opposition without objecting to any lack of notice.

Second, the Renewed Motion does not include a 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).) Indeed, Defendant’s failure to provide a memorandum as required by the Rule is an “admission that the [request] is without merit and cause for its denial.” (Cal. Rules of Court, Rule 3.1113(a), (b); In re Marriage of Falcone & Fyke (2012) 203 Cal.App.4th 964, 976.)

Finally, when a party seeks the same relief that was previously denied, it must bring a renewed motion pursuant to Code of Civil Procedure section 1008, subdivision (b). (California Correctional Peace Officers Ass’n v. Virga (2010) 181 Cal.App.4th 30, 43, fn. 11; see also Tate v. Wilburn (2010) 184 Cal.App.4th 150, 156-157.) When a motion has been denied in whole or in part, the moving party may apply again for the same relief at a later time only upon “new or different facts, circumstances or law.” (Code Civ. Proc., § 1008, subd. (b); see Graham v. Hansen (1982) 128 Cal.App.3d 965, 969-970.) The Motion does not point to any “new or different facts, circumstances or law” that would warrant the renewed request for relief.

Conclusion

Therefore, Defendant Jessica Wood’s Renewed Motion to Vacate Entry of Default is DENIED.

Court clerk to give notice.