Judge: Mark E. Windham, Case: LAM03Y00404, Date: 2022-12-20 Tentative Ruling

Case Number: LAM03Y00404    Hearing Date: December 20, 2022    Dept: 26

  The National Collection Agency v. Barrera, et al.
MOTION TO VACATE JUDGMENT

TENTATIVE RULING:

Defendant Silvia Marron’s Motion to Vacate Judgment and Dismiss Action is CONTINUED TO MARCH 21, 2023 AT 10:00 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE. BY MARCH 1, 2022, DEFENDANT SILVIA MARRON IS TO FILE AND SERVE A MEMORANDUM OF POINTS AND AUTHORITIES IN ACCORDANCE WITH CAL. RULES OF COURT 3.1113(b) AND SUPPORTING EVIDENCE. PROOF OF SERVICE OF THE SUPPLEMENTAL PAPERS ON PLAINTIF IS ALSO TO BE FILED BY MARCH 1, 2022. FAILURE TO COMPLY WITH THE COURT’S ORDER MAY RESULT IN THE MOTION BEING DENIED.

ANALYSIS:

This action was originally filed on November 19, 1992, by Plaintiff The National Collection Agency, Inc. (“Plaintiff”) against Defendants Hector Flores Barrera (“Defendant Barrera”) and Silvia Marron (erroneously sued as Defendant Silvia Barrera) (“Defendant Marron”). Default judgment was entered against Defendants on June 9, 1993. The judgment was renewed on February 4, 2003, January 14, 2013, and October 10, 2022. Defendant Marron filed the instant Motion to Vacate Judgment and Dismiss on November 22, 2022. No opposition has been filed.

Discussion

Defendant Marron brings the instant Motion to Vacate the Judgment and Dismiss the Action on the grounds that she was never served with the Summons and Complaint. (Motion, p. 2.) First, the Motion was not served on Plaintiff. Failure to give notice of a motion is not only a violation of the statutory requirements but of due process. (Code Civ. Proc., § 1005; Jones v. Otero (1984) 156 Cal.App.3d 754, 757.)

Second, the Motion does not indicate on what legal grounds it is brought, nor is it accompanied by a memorandum of points and authorities and supporting evidence. “The memorandum must contain a statement of facts, a concise statement of the law, evidence and arguments relied on, and a discussion of the statutes, cases, and textbooks cited in support of the position advanced.” (Cal. Rules of Court, Rule 3.1113(b).) Indeed, Defendant Marron’s failure to provide a memorandum as required by the Rule is an “admission that the [request] is without merit and cause for its denial.” (Cal. Rules of Court, Rule 3.1113(a), (b); In re Marriage of Falcone & Fyke (2012) 203 Cal.App.4th 964, 976.)

Based on the lack of notice to Plaintiff and lack of supporting memorandum and evidence, Defendant Marron has not demonstrated that the Court can grant the request to vacate the judgment and dismiss the action at this time.

Conclusion

Defendant Silvia Marron’s Motion to Vacate Judgment and Dismiss Action is CONTINUED TO MARCH 21, 2023 AT 10:00 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE. BY MARCH 1, 2022, DEFENDANT SILVIA MARRON IS TO FILE AND SERVE A MEMORANDUM OF POINTS AND AUTHORITIES IN ACCORDANCE WITH CAL. RULES OF COURT 3.1113(b) AND SUPPORTING EVIDENCE. PROOF OF SERVICE OF THE SUPPLEMENTAL PAPERS ON PLAINTIF IS ALSO TO BE FILED BY MARCH 1, 2022. FAILURE TO COMPLY WITH THE COURT’S ORDER MAY RESULT IN THE MOTION BEING DENIED.

Court clerk to give notice.