Judge Mark E. Windham, Case Number: 21STLC08637, Date: 2023-09-05 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.

The e-mail address is SSCdept26@lacourt.org

The heading on your e-mail should contain the case name, number, hearing date, and that you submit. The message should indicate your name, contact information, and the party you represent. Please note, the above e-mail address is to inform the court of your submission on the tentative ruling. All other inquiries will not receive a response.

If there are no appearances by either side and no submission on the Court's tentative ruling, the matter will be placed OFF CALENDAR.

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Defendant Dawn Misetich’s Motion to Vacate Judgment is GRANTED. THE ORDER DATED JUNE 7, 2023 IS VACATED. TRIAL IS RE-SET FOR DECEMBER 5, 2024 AT 8:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE.

On December 8, 2021, Plaintiff Michael E. Shaughnessy (“Plaintiff”) filed the instant action against Defendants Dorothy J. Misetich (“Defendant Dorothy”) and Dawn E. Misetich (“Defendant Dawn”). Defendants separately filed answers, in properia persona, on February 1, 2022. The case came for trial on June 7, 2023, at which time Defendants did not appear. (Minute Order, 06/07/23.) Following Plaintiff’s showing, the Court awarded judgment in his favor and ordered him to file a proposed judgment. (Ibid.)

Defendant Dawn’s ex parte application to vacate the judgment was denied on June 26, 2023. (Minute Order, 06/26/23.) Plaintiff filed a notice of entry of judgment, but no proposed judgment to date. It appears that Plaintiff continues to file requests for default judgment when there is no default in this action.

Defendant Dawn then filed the instant Motion to Vacate Judgment on July 21, 2023. Plaintiff filed an opposition on July 31, 2023.

Defendant Dawn 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 timely filed within six months of the trial date and is supported by an affidavit of fault. Defendant Dawn declares that she never had notice of the trial date and did not learn of the trial date until receipt of the June 7, 2023 minute order in the mail. (Motion, Dawn Misetich Decl., ¶¶3-5.) In opposition, Plaintiff also admits that he only learned of the trial date by checking online. (Opp., p. 2:3-6.) It appears, that as a pro per litigant, Plaintiff did not realize the trial date was provided by the Court in the Third Amended Standing Order, filed December 8, 2022. (Third Amended General Order, filed 12/08/21, ¶2.) The Third Amended General Order specifically orders Plaintiff to serve a copy on Defendants with the Summons and Complaint. (Third Amended General Order, filed 12/08/21, ¶1.) Defendants were not served with the Third Amended General Order with the Summons and Complaint. (Proofs of Service, filed 07/31/23, ¶¶1-2.) Therefore, Defendants were not provided with notice of the trial date and were denied the opportunity to appear.

Based on the foregoing, Defendant Dawn Misetich’s Motion to Vacate Judgment is GRANTED. THE ORDER DATED JUNE 7, 2023 IS VACATED. TRIAL IS RE-SET FOR DECEMBER 5, 2024 AT 8:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE.