Judge Mark E. Windham, Case Number: 23NWLC00944, Date: 2023-08-09 Tentative Ruling

Judge: Mark E. Windham, Case: 23NWLC00944, Date: 2023-08-09 Tentative Ruling

Case Number: 23NWLC00944 Hearing Date: August 9, 2023 Dept: 26

National Commercial Recovery, Inc. v. Pesso, et al.

MOTION TO VACATE DEFAULT JUDGMENT AND DISMISS DEFENDANT

(CCP § 473(a)(1))

TENTATIVE RULING:

Plaintiff National Commercial Recovery, Inc. dba Blair Smith and Associates’ Motion For Order Vacating The Default Judgment As Against Defendant Erica Pesso Only And Dismissing Her From Case Without Prejudice is CONTINUED TO SEPTEMBER 27, 2023 AT 10:00 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE.

ANALYSIS:

On January 12, 2023, Plaintiff National Commercial Recovery, Inc. dba Blair Smith and Associates (“Plaintiff”) filed this action against Defendants Alchemy Group Concepts LLC dba Kai’s Table, Alchemy Group Spirits LLC dba Kai’s Table; Norman Lee aka Norman Detric Lee aka Norman Kai Lee aka Kai Lee, and Erica Pesso (“Defendant Pesso”). Following Defendants’ failure to file responsive pleadings, the Court entered their default on March 8, 2023 and default judgment on May 11, 2023.

Plaintiff now brings the instant Motion For Order Vacating The Default Judgment As Against Defendant Erica Pesso Only And Dismissing Her From Case Without Prejudice, filed on July 13, 2023. No opposition has been filed to date.

Discussion

Plaintiff brings the instant Motion pursuant to Code of Civil Procedure section 473, subdivision (a)(1), which provides:

The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code.

(Code Civ. Proc., § 473, subd. (a)(1).) Although this provision pertains to amendments of pleadings and proceedings, Plaintiff seeks to stretch that language to include relief from a judgment against a party. The Court is not persuaded that the language can be so interpreted and is aware of no case that holds a judgment can be vacated pursuant to this statute. This is supported by the remaining provisions of section 473, which expressly provide grounds for relief from (i.e. to vacate) a judgment or proceeding. (See Code Civ. Proc., § 473, subds. (b), (d).) The legislature’s use of the word “amend” in subdivision (a)(1) is distinct from “relief” and must have a different meaning.

The Court also reminds Plaintiff of the law regarding the finality of judgments:

[A]fter a judgment has become final, newly discovered evidence generally is not a ground for reopening that judgment unless the concealment of that evidence prevented a fair adversary hearing, kept the claimant out of court entirely or utterly deprived him of a claim or defense, or precipitated a grave miscarriage of justice such as the conviction of an innocent person. These general propositions hold true no matter what the technical form is of the relief requested, be it an independent equitable attack on the judgment by action or motion; or a petition for writ of Coram vobis in a criminal or a civil action; or a collateral attack attempted by way of offense or defense in a separate action. Although these various remedies have slightly differing ground rules peculiar to their historical origin and development, they all share in common the underlying principle that courts are reluctant, in the interests of finality and judicial economy, to reopen a final judgment. Accordingly, in any attempted collateral attack based on lately discovered evidence, it is crucial to be able to demonstrate what amounts to due process deprivation: that the issue in question was really never litigated in any meaningful fashion.

(Los Angeles Airways, Inc. v. Hughes Tool Co. (1979) 95 Cal.App.3d 1, 6-7.) Despite Plaintiff’s artful interpretation of subdivision (a), it seeks to relieve Defendant Pesso from the default judgment based on different evidence than it presented in a sworn declaration in support of the default judgment. (See Smith Decl., filed 04/19/23.) In other words, Plaintiff asks the Court to overturn its own evidentiary finding regarding the propriety of default judgment against Defendant Pesso without demonstrating a deprivation of due process.

In light of these considerations, the hearing is continued to September 27, 2023 at 10:00 am in Department 26 in the Spring Street Courthouse. By September 6, 2023, Plaintiff is to file additional briefing addressing the Court’s concerns as discussed above.

Conclusion

Court clerk to give notice.