Judge: Mark E. Windham, Case: LAM11K05259, Date: 2022-08-04 Tentative Ruling

Case Number: LAM11K05259    Hearing Date: August 4, 2022    Dept: 26

MOTION TO VACATE JUDGMENT AND DISMISS ACTION

(equity)

TENTATIVE RULING:

Plaintiff Capital One Bank (USA), NA’s Motion to Vacate Judgment and to Dismiss Action with Prejudice is GRANTED.

ANALYSIS:

Plaintiff Capital One Bank (USA), NA (“Plaintiff”) filed the instant action against Defendant Denise Torres (“Defendant”) on March 22, 2011. Following Defendant’s failure to file a responsive pleading, the Court entered default judgment on June 9, 2011. The judgment was renewed on January 4, 2021.

Plaintiff filed the instant Motion to Vacate Judgment and Dismiss Action with Prejudice on June 22, 2022. No opposition has been filed to date.

Discussion

Plaintiff moves to vacate the judgment pursuant to Code of Civil Procedure section 473, subdivision (b) or on equitable grounds.

An application for relief pursuant to Code of Civil Procedure section 473, subdivision (b) 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.

More than six months has passed since the judgment was renewed on January 4, 2022, making the instant Motion untimely under this statute. The six-month deadline is jurisdictional and not subject to tolling. (Manson, Iver & York v. Black (2009) 176 Cal.App.4th 36, 42.)

Alternatively, the Motion is brought pursuant to the Court’s equitable powers. Equitable relief based on extrinsic mistake exists when circumstances extrinsic to the litigation have unfairly cost a party a hearing on the merits. (Mechling v. Asbestos Defendants (2018) 29 Cal.App.5th 1241, 1245-1246.) Extrinsic mistake includes circumstances “when a mistake led a court to do what it never intended.” (Kulchar v. Kulchar (1969) 1 Cal.3d 467, 472 [citing Sullivan v. Lumsden (1897) 118 Cal. 664, 668].)

The Motion is supported by Plaintiff’s counsel’s declaration showing that the judgment was obtained without Plaintiff counsel’s knowledge that Defendant had a valid fraud claim regarding the credit card account that is the subject of the instant matter. (Motion, D’Anna Decl., ¶¶5-6.) The declaration demonstrates that Plaintiff never intended to obtain a judgment on an account that was oppened and used fraudulently. (Id. at ¶7.) The Court’s reliance on Plaintiff evidence of what is now known to be a fraudulent account was, likewise, not intended.

Conclusion

Plaintiff Capital One Bank (USA), NA’s Motion to Vacate Judgment and to Dismiss Action with Prejudice is GRANTED.

Moving party to give notice.