Judge Mark E. Windham, Case Number: 22STLC05031, Date: 2024-08-06 Tentative Ruling

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United Financial Casualty Co. v. Heard, et al.

VACATE DEFAULT AND DEFAULT JUDGMENT

Defendant Rosalin H. Heard’s Motion to Vacate Default and Default Judgment is DENIED.

On August 2, 2022, Plaintiff United Financial Casualty Company (“Plaintiff”) filed the instant action against Defendant Rosalin Heard (“Defendant”). Following Defendant’s failure to file a responsive pleading, the Court entered Defendant’s default on January 24, 2024 and default judgment on February 14, 2024.

Defendant filed the instant Motion to Vacate Default and Default Judgment on July 2, 2024. Plaintiff filed an opposition on July 17, 2024.

The Motion is not a model of clarity. Defendant moves to vacate the entry of default and default judgment pursuant to numerous statutory code sections but does not analyze any supporting facts in the memorandum of points and authorities. The Court will do its best to consider the arguments under Code of Civil Procedure section 473, subdivisions (b) and (d), and section 473.5.

Relief under Code of Civil Procedure section 473, subdivision (b) is unavailable because the application for relief must be made within a reasonable time of entry of default, but no more than six months after entry of default. Default was entered on January 24, 2024 and the instant Motion was filed more than five months later, on July 2, 2024. Plaintiff does not explain the months-long delay in moving for relief. Where the statute requires that “ ‘ “the application must be made within a ‘reasonable time’ … what is a reasonable time in any case depends upon the circumstances of that particular case.” While in “the determination of that question, a large discretion is necessarily confided to [the trial] court” ... there must be some showing—some evidence—as the basis for the exercise of such discretion.’ ” (Caldwell v. Methodist Hospital (1994) 24 Cal.App.4th 1521, 1524 [citing Carrasco v. Craft (1985) 164 Cal.App.3d 796, 805].) The Motion states that Defendant did not learn of this action until June 26, 2024 but does not explain non-receipt of the request for entry of default and default judgment, which were mailed to Defendant’s address. (Request for Default, filed 01/24/24, ¶6; Request for Default Judgment, filed 02/14/24, ¶6; Motion, p. 1.) There is no basis for the Court to find that the Motion was brought within a reasonable amount of time.

Even if the Court were to find the Motion timely, it is not supported by an affidavit demonstrating that Defendant was not served with the Summons and Complaint such that default was entered due to mistake, inadvertence, surprise, or excusable neglect. (Code Civ. Proc., § 473, subd. (b).) A declaration must be attested under penalty of perjury as required by Code of Civil Procedure section 2015.5; Defendant’s affidavit does not meet this requirement. (Motion, pp. 9-10.)

Code of Civil Procedure section 473.5 also requires Defendant to show that the Motion was brought within a reasonable time and to support the Motion with “an affidavit showing under oath that the party’s lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect.” (Code Civ. Proc., § 473.5, subds. (a), (b).) Neither of these requirements have been met.

Finally, relief under Code of Civil Procedure section 473, subdivision (d) is unavailable because the Motion does not demonstrate that the entry of default or default judgment were void or due to clerical error. (Code Civ. Proc., § 473, subd. (d) [“The court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order.”]

Based on the foregoing, Defendant Rosalin Heard’s Motion to Vacate Default and Default Judgment is DENIED.