Judge Mark E. Windham, Case Number: LAM15K06508, Date: 2023-10-24 Tentative Ruling

Judge: Mark E. Windham, Case: LAM15K06508, Date: 2023-10-24 Tentative Ruling

Case Number: LAM15K06508 Hearing Date: November 27, 2023 Dept: 26

Pelayo v. Shayan, et al.

MOTION TO VACATE ENTRY OF DEFAULT AND DEFAULT JUDGMENT

(CCP § 473(b), (d); 473.5)

TENTATIVE RULING:

Defendant Shawn Shayan’s Motion to Vacate Default Judgment is GRANTED. ALL PROCEEDINGS FROM JULY 29, 2015 THROUGH THE JUNE 1, 2023 WRIT OF EXECUTION ARE VACATED.

ANALYSIS:

Plaintiff Carmen Pelayo (“Plaintiff”) filed the instant action for civil rights violations against Defendants Shawn Shayan (“Defendant”), Mansour Shayan, and Helen Shayan on May 29, 2015. Thereafter, the procedural history becomes murky.

Default was entered against Defendant on July 16, 2015. (Request for Entry of Default, 07/16/25.) However, when Defendant filed an Application for Stay and Early Evaluation Conference on July 29, 2015, the Court stayed the action and set the conference for September 22, 2015. (Notice of Stay and Early Evaluation Conference, filed 07/29/15.) In other words, the Court proceeded as if no default had been entered against Defendant. A copy of the Notice of Stay and Early Evaluation Conference was mailed to Plaintiff on August 25, 2015. (Declaration of Mailing, filed 08/27/15.)

On September 22, 2015, Plaintiff did not appear for the conference and the Court granted Defendant’s oral motion to dismiss the action with prejudice. (Minute Order, 09/22/15.) Notice of the ruling was served on Plaintiff on the same date. (Minute Order, 09/22/15, p. 2.) On October 9, 2015, Plaintiff filed a motion to vacate the dismissal, which the Court granted on November 9, 2016. (Minute Order, 11/09/16.) Although the November 9, 2016 minute order set the matter of trial, the Court then recognized the entry of default against Defendant and granted Plaintiff’s request for default judgment on January 17, 2017. (Default Judgment, 01/17/17.)

Defendant filed the instant Motion to Vacate Default Judgment on September 28, 2023. Plaintiff filed an opposition on October 2, 2023 and Defendant replied on October 13, 2023. The Motion initially came for hearing on October 24, 2023 and was continued for further opposition briefing. Plaintiff filed a supplemental opposition on October 26, 2023.

Discussion

Defendant initially moves to vacate the entry of default judgment pursuant to Code of Civil Procedure section 473, subdivisions (b), or section 473.5. Plaintiff is correct to point out in opposition that relief under Civil Procedure section 473, subdivision (b) is barred by the jurisdictional six-month deadline. (See Code Civ. Proc., § 473, subd. (b).) Likewise, a motion under section 473.5 has an outer deadline of two years from default judgment. (Code Civ. Proc., § 473.5, subd. (a).)

The reply drops arguments under section 473, subdivision (b) and section 473.5, and only raises Code of Civil Procedure section 473, subdivision (d). (Reply, p. 3.) Also, in the Motion, Defendant argued that all acts flowing out of a void judgment are likewise void. (Citing County of San Diego v. Gorham (2010) 186 Cal.App.4th 1215, 1226.)

Defendant presents undisputed evidence that his mailing and home address at all relevant times was 10475 Ashton Avenue, #205, Los Angeles, California. (Motion, Shayan Decl., ¶2.) He also declares that he reasonably relied on the order dismissing the action and was not aware the case was reinstated on November 14, 2016. (Id. at ¶¶9-10.) The Notice of Ruling of the order granting Plaintiff’s motion to vacate dismissal was not served to the Ashton Avenue address but rather to 5010 Loma Vista Avenue, #G, Vernon, California. (Notice of Ruling, filed 11/14/16.) Likewise, Plaintiff’s request for default judgment was served to the Loma Vista address such that Defendant had no notice of it. (Request for Court Judgment, filed 12/27/16; Motion, Shayan Decl., ¶12.)

The Court disagrees with Plaintiff that Defendant had no right to notice of the order vacating the dismissal or other proceedings subsequent to the entry of default. Certainly, under normal circumstances, a defendant in default has no right to notice. (See Code Civ. Proc., § 1010; Sporn v. Home Depot USA, Inc. (2005) 126 Cal.App.4th 1294, 1301.) The circumstances of this case, however, are far from typical. Defendant has demonstrated he was deprived of the opportunity to challenge the entry of default by the Court’s improper filing on July 29, 2015, and was deprived of the opportunity to oppose the motion to vacate dismissal. Due to Plaintiff’s service of the papers to the Loma Vista address, the parties were in essence, separately litigating this action without realizing what the other was doing.

Plaintiff is correct to argue that the Court’s filing of Defendant’s application for stay and early evaluation conference was void in light of the entry of default. (Citing Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc. (1984) 155 Cal.App.3d 381, 385- 386; W.A. Rose Co. v. Municipal Court (FitzSimmons) (1959) 176 Cal.App.2d 67, 71.) That void filing, however, gave rise to the intervening proceedings that followed, including the default judgment. It cannot be said what would have happened had Defendant’s July 29, 2015 filing been rejected, as it should have been. Defendant contends such a rejection would have provided him with notice of the entry of default such that he could have moved to set it aside promptly. The Court finds that Defendant should be given such an opportunity. Accordingly, pursuant to Code of Civil Procedure section 473, subdivision (d), the Court sets aside all the proceedings from July 29, 2015 going forward and returns this action to its status immediately following entry of default on July 16, 2015.

Conclusion

Defendant Shawn Shayan’s Motion to Vacate Default Judgment is GRANTED. ALL PROCEEDINGS FROM JULY 29, 2015 THROUGH THE JUNE 1, 2023 WRIT OF EXECUTION ARE VACATED.

Court clerk to give notice.