Judge: Mark E. Windham, Case: LAM11CD3590, Date: 2023-03-20 Tentative Ruling
Case Number: LAM11CD3590 Hearing Date: March 20, 2023 Dept: 26
Doi v. St. Andrew, et al.
MOTION TO VACATE JUDGMENT
TENTATIVE RULING:
Based on the foregoing, Defendant Jasper St. Andrew’s Motion to
Vacate Default is Defendant
Jasper St. Andrew’s Motion to Vacate Default is CONTINUED TO MAY 22,
2023 AT 10:00 AM IN DEPARTMENT 26 OF THE SPRING STREET COURTHOUSE. BY MAY 1,
2023, DEFENDANT JASPER ST. ANDREW IS TO FILE AND SERVE A MEMORANDUM OF POINTS
AND AUTHORITIES AS REQUIRED BY CAL. RULES OF COURT 3.1113 AND SUPPORTING
DECLARATION PER CODE OF CIVIL PROCEDURE SECTION 2015.5. PROOF OF SERVICE OF THE
MEMORANDUM OF POINTS AND AUTHORITIES AND DECLARATION MUST ALSO TO BE FILED BY
MAY 1, 2023. FAILURE TO COMPLY WITH THE COURT’S ORDER MAY RESULT IN THE MOTION
BEING DENIED.
ANALYSIS:
Plaintiff Glenn Doi (“Plaintiff”) filed the instant unlawful
detainer action against Defendants Melizza St. Michael aka Tammy St. Michael
aka Melizza St. Andrew and Jasper St. Andrew (“Defendant”) on January 28, 2002.
The case was previously assigned case number 02C00227 and Defendant filed an
Answer on February 1, 2002. Following a motion for summary judgment, judgment
was entered in Plaintiff’s favor on March 7, 2002. The judgment was renewed on
September 14, 2011 at which time the case number was changed to DOW11C03590.
The case number changed to LAM11CD3590 on March 15, 2013 and the judgment was
renewed again on May 17, 2021.
An order for Appearance and Examination was scheduled for
August 1, 2022 and Defendant appeared and provided sworn testimony. (Minute
Order, 08/01/22.) The examination was continued to September 26, 2022, but
neither party appeared. (Minute Order, 09/26/22.) The examination was re-set
for December 19, 2022 at which time Defendant appeared again. (Minute Order,
12/19/22.)
The examination was continued to January 30, 2023. (Ibid.)
Defendant filed the instant Motion to Remove Default on
December 27, 2022. Plaintiff filed an opposition on January 23, 2023 and an
opposition declaration on February 24, 2023.
Discussion
The Motion is not accompanied by a proof of service showing
notice of the motion and hearing 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.) It appears that Plaintiff became aware of the Motion and by filing
an opposition, waived any defect in notice. (Carlton v. Quint (2000)
77 Cal.App.4th 690, 697.) However, the opposition also is not accompanied by a
proof of service. (Opp., filed 01/23/23.) Therefore, the Court will only
consider the opposition declaration at this time.
More importantly, the Motion is
not accompanied by a memorandum of points and authorities, as required by the
California Rules of Court. Instead, the Motion offers factual argument
regarding Defendant’s defense to the merits of this action. (Motion, p.
1:14-19.) By asking the Court to “remove default”, presumably Defendant is
asking the Court to vacate the judgment in this action that was entered on
March 7, 2002. The Rules require that a memorandum of points and authorities
include “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).) Facts alone, without reference to the supporting statutes, cases,
law, and evidence, cannot provide a basis to vacate the judgment.
Conclusion
Based on the foregoing, Defendant Jasper St. Andrew’s Motion to
Vacate Default is Defendant
Jasper St. Andrew’s Motion to Vacate Default is CONTINUED TO MAY 22,
2023 AT 10:00 AM IN DEPARTMENT 26 OF THE SPRING STREET COURTHOUSE. BY MAY 1,
2023, DEFENDANT JASPER ST. ANDREW IS TO FILE AND SERVE A MEMORANDUM OF POINTS
AND AUTHORITIES AS REQUIRED BY CAL. RULES OF COURT 3.1113 AND SUPPORTING
DECLARATION PER CODE OF CIVIL PROCEDURE SECTION 2015.5. PROOF OF SERVICE OF THE
MEMORANDUM OF POINTS AND AUTHORITIES AND DECLARATION MUST ALSO TO BE FILED BY
MAY 1, 2023. FAILURE TO COMPLY WITH THE COURT’S ORDER MAY RESULT IN THE MOTION
BEING DENIED.
Court clerk to give notice.