Judge: Mark E. Windham, Case: 21STLC03856, Date: 2023-01-30 Tentative Ruling

Case Number: 21STLC03856    Hearing Date: January 30, 2023    Dept: 26

Twin City Fire Ins. Co. v. Gipson, et al.

MOTION TO VACATE DEFAULT

TENTATIVE RULING:

Defendant Kierstin Gipson’s Motion to Vacate Default is DENIED.

ANALYSIS:

Plaintiff Twin City Fire Insurance Company (“Plaintiff”) filed the instant action against Defendant Kierstin Gipson (“Defendant”) on May 18, 2022. Following the lack of any responsive pleading to the Complaint, the Court entered Defendant’s default on December 15, 2021. 

Defendant filed the instant Motion to Vacate Default on October 25, 2022. Despite the pending Motion to Vacate Default, Plaintiff filed a request for default judgment on November 3, 2022. Plaintiff filed an opposition on November 10, 2022. The Court entered the default judgment on November 15, 2022. (Minute Order, 11/15/22.)

At the initial hearing on November 28, 2022, the Court continued the matter to allow Defendant file a supplemental memorandum of points and authorities in compliance with Cal. Rules of Court, Rule 3.1113. Defendant filed a second Motion to Vacate on January 3, 2023. Plaintiff filed an opposition on January 17, 2023.

Discussion

The Court notes that the proof of service of the second Motion to Vacate does not indicate to what address it was delivered. (Proof of Service, filed 01/03/23, ¶5.) 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.) However, Plaintiff filed an opposition on the merits, thereby waiving any defect in notice. (Carlton v. Quint (2000) 77 Cal.App.4th 690, 697 [“It is well settled that the appearance of a party at the hearing of a motion and his or her opposition to the motion on its merits is a waiver of any defects or irregularities in the notice of motion.”].)

Substantively, the second Motion is still not accompanied by a memorandum of points and authorities, as required. Instead, the Motion offers further factual argument regarding lack of notice of this action. (Motion, filed 01/03/23, pp. 2-3.) The Court previously indicated the requirements of a memorandum of points and authorities, which includes “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).) The hearing on the Motion to Vacate was specifically continued to allow Defendant to file a memorandum in compliance with Rule 3.1113. Facts alone, without reference to the supporting statutes, cases and law, cannot provide a basis to vacate the default and default judgment.

Conclusion

Based on the foregoing, Defendant Kierstin Gipson’s Motion to Vacate Default is DENIED.

Court clerk to give notice.