Judge: Mark E. Windham, Case: LAM02K07232, Date: 2022-12-19 Tentative Ruling

Case Number: LAM02K07232    Hearing Date: December 19, 2022    Dept: 26

Mayer Management, Inc. v. Ezenwa, et al.

MOTION TO VACATE DEFAULT AND DEFAULT JUDGEMENT

(CCP §§ 473(b), 473.5)

TENTATIVE RULING:

Defendant Kenneth Ezenwa’s Motion to Vacate Default and Default Judgment is DENIED.

ANALYSIS:

Judgment in this action was entered in favor of Plaintiff Mayer Management, Inc. (“Plaintiff”) and against Defendant Kenneth Ezenwa (“Defendant Ezenwa”) and Godwin Nnamah (“Defendant Nnamah”) on April 3, 2002. The Judgment was renewed on August 24, 2011 and June 29, 2021. The judgment was assigned to Union Adjustment Co., Inc. on August 24, 2011, and then again to Collect Access on December 31, 2020.

Defendant Ezenwa filed the instant Motion to Vacate Default and Default Judgment on November 10, 2022. No opposition has been filed to date.

Discussion

Defendant Ezenwa moves for relief pursuant to Code of Civil Procedure sections 473.5 and 473, subdivision (b).

Code of Civil Procedure section 473(b)

Under Code of Civil Procedure section 473, subdivision (b) 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 and a copy of the proposed response to the complaint. (Code Civ. Proc., § 473, subd. (b); English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 143.) When based on an attorney affidavit of fault, the relief sought must be granted if the statutory requirements are satisfied. (Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 612.) 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 is not timely brought within the six-month deadline. The judgment in this action was entered more than 20 years ago on April 3, 2002. The judgment was then renewed twice, once more than 11 years ago on August 24, 2011, and again a year-and-a-half ago on June 29, 2021. All of these dates are well outside the jurisdictional deadline to seek relief under Code of Civil Procedure section 473, subdivision (b). (Manson, Iver & York v. Black (2009) 176 Cal.App.4th 36, 42 [holding that the six-month deadline is jurisdictional and not subject to tolling].) Nor does Defendant Ezenwa’s declaration provide any information that would indicate service of the judgments and notices of renewal were improper. Defendant Ezenwa simply states that they did not have knowledge of this action until a wage garnishment order began on September 28, 2022. (Motion, Ezenwa Decl., ¶¶3-5.) The Motion and declaration do not address service of the judgment and notice of renewal papers. Finally, the Motion is not accompanied by a copy of Defendant Ezenwa’s proposed responsive pleading, which is also required by the statute.

Therefore, relief is not available under Code of Civil Procedure section 437, subdivision (b).

Code of Civil Procedure section 473.5

Code of Civil Procedure section 473.5, subdivision provides in relevant part:

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).)

Again, the Motion is untimely because it was filed outside the two-year statutory deadline to seek relief. Nor does Defendant Ezenwa’s declaration show that their lack of actual notice of this action was not the result of avoidance of service or inexcusable neglect. (Motion, Ezenwa Decl., ¶¶3-5.) Finally, as already noted, no copy of Defendant Ezenwa’s proposed pleading is included. The request for relief from entry of default pursuant to Code of Civil Procedure section 473.5 is also denied.

Conclusion

Defendant Kenneth Ezenwa’s Motion to Vacate Default and Default Judgment is DENIED.

Court clerk to give notice.