Judge: Mark E. Windham, Case: 21STLC06864, Date: 2022-08-03 Tentative Ruling

Case Number: 21STLC06864    Hearing Date: August 3, 2022    Dept: 26

MOTION TO VACATE DEFAULT JUDGMENT

(CCP § 437(b))

TENTATIVE RULING:

Defendants Alon Sahar and Dekel & Associates, Inc.’s Motion to Vacate Default Judgment and Abstract of Judgment is DENIED.

ANALYSIS:

On September 22, 2021, Plaintiff Asher Harel (“Plaintiff”) filed this action against Defendants Alon Sahar and Dekel & Associates, Inc. (“Defendants”). Plaintiff filed proofs of substitute service of the Summons and Complaint on November 17, 2021. Following Defendants’ failure to file a responsive pleading, the Court entered their default on November 22 and 23, 2021.

Defendants filed an Answer on February 18, 2022. Default judgment was subsequently entered against Defendants on March 11, 2022 with an abstract of judgment issued on April 28, 2022.

Defendants filed the instant Motion to Vacate Default Judgment and Abstract of Judgment on June 28, 2022. Plaintiff filed an opposition with evidentiary objections on July 13, 2022 and Defendants filed a reply declaration on July 29, 2022.

Discussion

The Motion to Vacate is brought pursuant to Code of Civil Procedure section 473, subdivision (b), pursuant to which 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 and a copy of the proposed response to the complaint. (Code Civ. Proc., § 473, subd. (b); English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 143.) 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.

First, if the Motion is based Defendants’ fault in not responding to the Complaint prior to entry of default on November 22 and 23, 2022, it cannot be timely because it was filed more than six months after entry of default. (Code Civ. Proc., § 473, subd. (b).) The six-month deadline is jurisdictional and not subject to tolling. (Manson, Iver & York v. Black (2009) 176 Cal.App.4th 36, 42.) Nor could the Court separately set aside the default judgment without addressing the entry of default. As the Court of Appeals explained, if the court “could not set aside the default, it also could not set aside the default judgment under Code of Civil Procedure section 473, because that would be ‘an idle act.’” (Pulte Homes Corporation v. Williams Mechanical, Inc. (2016) 2 Cal.App.5th 267, 273.)

The Motion would be timely if based on defense counsel’s fault because such a request can be made within six months of the default judgment. (Code Civ. Proc., § 473, subd. (b).) However, the supporting declaration must still attest to mistake, inadvertence, surprise or neglect by defense counsel with respect to the entry of default. Defense counsel’s declaration fails to do so and simply mentions that the Answer was filed on February 18, 2022. (Motion, Bogert Decl., ¶¶2-5.) Nor does the reply declaration offer any supporting authority that a declaration of fault is not required. (Reply, Bogert Decl., ¶3.) Without a declaration of fault, no relief under Code of Civil Procedure section 473, subdivision (b) is possible. Also, the Motion argues that Defendants were not notified of the request for judgment until June 2022, yet the request includes a declaration of service. (Request for Default Judgment, filed 01/31/22, ¶6(b).)

Finally, the supporting declaration is ineffective for another reason. Plaintiff’s evidentiary objections to the declaration of defense counsel, Jeffrey C. Bogert, are sustained on grounds of hearsay and lack of personal knowledge.

Conclusion

Defendants Alon Sahar and Dekel & Associates, Inc.’s Motion to Vacate Default Judgment and Abstract of Judgment is DENIED.

Plaintiff to give notice.