Judge: Melissa R. Mccormick, Case: Rickey v. Hayden, Date: 2022-07-28 Tentative Ruling

Defendant Dana Hayden’s Motion to Vacate or Set Aside Order

Defendant Dana Hayden moves for an order vacating or setting aside the court’s March 10, 2022 order granting plaintiff Jeanne Rickey’s motion for an award of attorneys’ fees and costs.  For the following reasons, defendant’s motion is denied.

Plaintiff filed suit seeking an injunction requiring defendant to move a fence he installed on common area property in a condominium complex in which plaintiff and defendant both own units.  While the lawsuit was pending, defendant complied and moved the fence.  Plaintiff thereafter voluntarily dismissed her lawsuit and moved for an award of attorneys’ fees and costs. 

Defendant did not file an opposition to plaintiff’s motion, but appeared at the motion hearing where defendant stated he had not received the motion.  Defendant did not challenge any of plaintiff’s specific attorneys’ fees and costs.  As detailed in the court’s March 10, 2022 order, the proof of service of plaintiff’s motion reflected service of the motion on defendant at what defendant acknowledged at the hearing was his home address.  Defendant also acknowledged receiving other case documents at the same address.  Defendant argued plaintiff could not recover attorneys’ fees and costs because she had dismissed her case.  As discussed in the court’s March 10, 2022 order, plaintiff’s dismissal of her complaint does not bar an award of reasonable attorneys’ fees and costs.  The court granted plaintiff’s motion and awarded plaintiff $19,437.20 in attorneys’ fees and costs.  See 3/10/22 Order. 

Defendant moves pursuant to Civil Procedure Code section 473 to vacate or set aside the March 10, 2022 order based on defendant’s alleged mistake, inadvertence, surprise, or excusable neglect.  Defendant argues he did not receive plaintiff’s attorneys’ fees motion.  The court addressed this argument in its March 10, 2022 order.  The additional evidence presented by the parties in connection with the instant motion regarding the mailboxes at the condominium complex does not support defendant’s claim he did not receive the motion.

Plaintiff’s evidentiary objection to the Pathak Declaration (page 11, paragraph 6) is sustained.

Plaintiff to give notice.