Judge Mark E. Windham, Case Number: 22STLC04329, Date: 2024-01-29 Tentative Ruling

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Defendant Simeon Hixson aka Sim J. Hixson’s Motion to Vacate Default and Default Judgment is DENIED.

On June 28, 2022, Plaintiff Ronald P. Slates, a professional corporation (“Plaintiff”) filed this action against Defendants Simeon Hixson aka Sim J. Hixson (“Defendant”). On July 14, 2022, Plaintiff filed a Proof of Services of Summons, stating that it had served Defendant with the Summons, Complaint, and other documents by substitute service. (Proof of Personal Service, filed 07/14/22.)

On August 9, 2022, Defendant filed a Notice of Stay of Proceedings due to arbitration. (Notice of Stay, filed 08/09/22.) On September 22, 2022, Plaintiff filed a Notice of Termination of Stay of Proceedings, informing the Court that the arbitration proceeding was terminated due to Defendant’s failure to pay arbitration fees. (Notice of Termination, filed 09/22/22.)

On October 4, 2022, default was entered against the Defendant. On February 6, 2023, the Court held a Non-Appearance Case Review Re: Bankruptcy, noting that Plaintiff had filed a Notice of Termination of Stay of Proceedings and lifted the stay on the case in its entirety. (Minute Order, 02/06/23.) The Court also noted that default had been entered against the Defendant and set an Order to Show Cause Re: Entry of Default Judgment for April 18, 2023. (Ibid.)

On August 16, 2023, default judgment of $28,684.99 was entered against Defendant and in favor of Plaintiff. (Default Judgment, 08/16/23.) On October 23, 2023, Defendant filed the instant motion to vacate the default and default judgment. On November 1, 2023, Plaintiff filed its opposition to the motion. The Motion came for hearing on November 15, 2023 in Department 25 of the Spring Street Courthouse, at which time no ruling was issued. Instead, the case was transferred to Department 26 in the Spring Street Courthouse and reset for hearing on February 15, 2024.

Defendant moves to vacate the entry of default pursuant to Code of Civil Procedure section 473, subdivision (b), which states that an application for relief must be made within a reasonable time, 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. (Code Civ. Proc., § 473, subd. (b); English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 143.) The motion must also be accompanied by a copy of the moving defendant’s proposed pleading. (Code Civ. Proc., § 473, subd. (b).) This can be corrected if Defendant submits a proposed responsive pleading by the hearing date. (Code Civ. Proc., § 473, subd. (b); Carmel, Ltd. v. Tavoussi (2009) 175 Cal.App.4th 393, 403.) The instant Motion was not timely filed within six months of entry of default on October 4, 2022. The six-month deadline is jurisdictional and not subject to tolling. (Manson, Iver & York v. Black (2009) 176 Cal.App.4th 36, 42.)

Even if the Court were to find that the Motion is timely because it was filed within six months of entry of default judgment, Defendant has not demonstrated mistake, inadvertence, surprise, or excusable neglect with respect to the entry of default. As Plaintiff points out, Business and Professions Code section 6201, subdivision (c), states that upon the filing of the request for arbitration, the action shall be automatically stayed until the award of the arbitration is issued or the arbitration is otherwise terminated. Under California Rules of Court, Rule 3.650(d), when a stay is no longer in effect, the party who filed the notice of the stay must immediately serve and file a notice of termination.

Plaintiff filed the Notice of Stay of Proceedings on August 9, 2022, thereby initiating the stay. Contrary to the assertion in Defendant’s Motion, the Court did not issue an order with respect to the length of the stay upon which Defendant could have relied. (See Motion, p. 2:4-8; Hixson Decl., ¶2.) The Court did not issue any order in this action until February 6, 2023. As of the date default was entered—October 4, 2022—Defendant could not have had any reasonable expectation regarding the length of the stay, or that it was still in effect at that time.

Nor could Defendant have been surprised by the entry of default judgment in August 2023. Defendant was served with the Notice of Termination of Stay by mail on September 22, 2022. (Notice of Termination, filed 09/22/22, pp. 5-6.) Also, on February 6, 2023, the Court noted that the Notice of Termination of Stay had been filed and indicated that the stay was lifted. (Minute Order, 02/06/23.) Notably, Defendant’s Motion does not address his notice of the Notice of Termination, the request for entry of default, or the Court’s order setting an order to show cause regarding default judgment. (Motion, Hixson Decl., ¶4.) These documents were mailed to Defendant at their address of record. (Notice of Termination, filed 09/22/22, pp. 5-6; Certificate of Mailing, 02/06/23; Request for Entry of Default, filed 10/04/22, ¶6.) Therefore, the Court finds that Defendant has not demonstrated that default or default judgment was entered as a result of mistake, inadvertence, surprise, or excusable neglect.

Defendant Simeon Hixson aka Sim J. Hixson’s Motion to Vacate Default and Default Judgment is DENIED.