Judge: Mark E. Windham, Case: 23STLC04036, Date: 2024-04-30 Tentative Ruling
Case Number: 23STLC04036 Hearing Date: April 30, 2024 Dept: 26
Bahlaievskyi v. Petrosian, et al.
MOTION TO VACATE ENTRY OF DEFAULT
(CCP §§ 473(b), 473.5, 473(d))
TENTATIVE RULING:
Defendant Janet Petrosian Motion to Vacate Entry of Default
is DENIED.
ANALYSIS:
On June 26, 2023, Plaintiff Bohdan Bahlaievskyi (“Plaintiff”)
filed the instant action against Defendant Janet Petrosian (“Defendant”). When
Defendant failed to file a responsive pleading, Plaintiff obtained their
default on October 11, 2023.
On January 12, 2024, Defendant filed the instant Motion to
Vacate Default. No opposition has been filed to date.
Discussion
Defendant moves to vacate the entry of
default pursuant to Code of Civil Procedure section 473, subdivision (b) and
(d), and section 473.5. The Court will consider each statutory basis in turn.
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 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.)
A request for relief
under the discretionary prong, based on party fault, must not only be made
within six months of entry of default but within a reasonable time. (Code Civ.
Proc., § 473, subd. (b).) The Motion was filed five-and-a-half months after
notice of the request for entry of default was mailed to Defendant at the same
address where they were personally served with the Summons and Complaint.
(Proof of Personal Service, filed 08/02/23, ¶¶4-5; Request for Entry of
Default, filed 10/11/23, ¶6.)
Defendant does not
demonstrate that was a reasonable amount of time to seek relief because the
Motion does not address this requirement through argument or evidence. (See Caldwell
v. Methodist Hospital (1994) 24 Cal.App.4th 1521, 1524 [citing Carrasco
v. Craft (1985) 164 Cal.App.3d 796, 805] [“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.’ ”].)
The Motion also fails to
attach a declaration of fault from Defendant demonstrating that default was
entered due to their mistake, surprise, inadvertence, or excusable neglect. The
only supporting declaration is from defense counsel, who cannot attest to
Defendant’s fault. Finally, the Motion does not attach a copy of Defendant’s
proposed responsive pleading. As none of the requirements for relief from the
default under Code of Civil Procedure section 473, subdivision (b) have been
demonstrated, the Motion on these grounds must be denied.
Code of Civil
Procedure section 473.5
The Motion is also brought under Code of Civil Procedure
section 473.5, subdivision (a):
When service of a summons has not resulted
in actual notice to a party in time to defend the action and a default or
default judgment has been entered against him or
her in the action, he or she may serve and file a
notice of motion to set aside the default or default judgment and for
leave to defend the action. The notice of
motion shall be served and filed within a reasonable time, but in no event
exceeding the earlier of: (i) two years after entry of a default judgment
against him or her; or (ii) 180 days after service on him or
her of a written notice that the default or default judgment has
been entered.
(Code Civ. Proc., § 473.5, subd. (a).)
Additionally, the motion “shall be accompanied by 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. The party
shall serve and file with the notice a copy of the answer, motion, or other
pleading proposed to be filed in the action.” (Code Civ. Proc., § 473.5, subd.
(b).)
This statute also
contains a reasonable diligence requirement, which has not been met. Nor has
Defendant shown their lack of actual notice of this lawsuit, or that such lack
of notice was not caused by avoidance of service or inexcusable neglect,
without a supporting declaration based on personal knowledge. Finally, no copy
of the proposed responsive pleading has been filed. As none of the requirements
for relief from the default under Code of Civil Procedure section 473.5 have
been demonstrated, the Motion on these grounds must also be denied.
Code of Civil Procedure section 473, subdivision (d)
Finally, Code of Civil Procedure section 473, subdivision
(d) states that “[t]he court may, .... on motion of either party after notice
to the other party, set aside any void judgment or order.” (Code Civ. Proc., §
473, subd. (d).) As Defendant points out, a void judgment or order can result
due to improper service. (Citing Trackman v. Kenney (2010) 187
Cal.App.4th 175, 180.) The Motion does not demonstrate improper service of the
Summons and Complaint. As previously noted, the declaration of defense counsel
cannot attest to service of the papers on Defendant and in any event, does not
do so. Rather, defense counsel declares that Defendant did not file an answer
due to excusable neglect and ignorance. (Motion, Chapman Decl., ¶6.) Therefore,
Defendant has not demonstrated they are entitled to relief under Code of Civil
Procedure section 473, subdivision (d).
Conclusion
Defendant Janet Petrosian Motion to Vacate Entry of Default
is DENIED.
Court clerk to give notice.