Judge: Melissa R. Mccormick, Case: "Sax v. Convergence Wireless, Inc., et al.", Date: 2022-09-29 Tentative Ruling
Defendant and Judgment Debtor Timothy L. Hirou’s Motion to Set Aside Judgment
Defendant and judgment debtor Timothy L. Hirou (Hirou) moves to set aside a judgment entered against him on December 17, 2020. Plaintiffs and judgment creditors Brian M. Sax and Andrea K. Sax oppose Hirou’s motion. The court exercises its discretion to consider Hirou’s motion despite its procedural deficiencies, including that Hirou did not file several required motion documents and that Hirou’s declaration is unsigned. For the following reasons, Hirou’s motion is denied.
Following a court trial at which Hirou did not appear, the court entered judgment in favor of Brian Sax and against Hirou on Brian Sax’s breach of contract and account stated causes of action; in favor of Brian Sax and Andrea Sax and against Hirou on plaintiffs’ account stated cause of action; in favor of Brian Sax and against Hirou on Brian Sax’s intentional fraud cause of action; and in favor of Brian Sax and against Hirou on Brian Sax’s wrongful termination cause of action. See 12/17/22 Judgment & 12/15/22 Order attached thereto; see also 8/18/22 Order (order denying defendant Judith Hirou’s motion to set aside judgment). (The December 17, 2022 judgment and December 15, 2022 order address several other parties and causes of action. In addition, extensive other proceedings occurred over the course of this case. The court confines its discussion to the case proceedings relevant to Hirou’s motion.) In addition to other evidence admitted at trial, the court admitted plaintiffs’ requests for admissions to Hirou, which the court deemed admitted in a June 25, 2022 order.
Hirou admits he was personally served with the summons. Hirou states he retained attorney David R. Griffin to represent him in the lawsuit. Griffin filed an answer and a cross-complaint on Hirou’s behalf in June 2019. On January 15, 2020 a substitution of attorney (ROA No. 212) was filed reflecting the cessation of Griffin’s representation of Hirou and Hirou’s self-representation.
The case ultimately proceeded to a court trial on December 15, 2020. Plaintiffs’ counsel served notice of the trial date at Hirou’s address set forth in the substitution of attorney, at a second address for Hirou (the same address on the caption page of the instant motion), and by email to Griffin (ROA No. 475), as well as several other documents bearing the trial date (e.g., ROA No. 492). Hirou did not appear at trial. Hirou states he learned a judgment had been entered against him on or about December 10 or December 14, 2021 when either his mother or a lawyer told him about the judgment. Motion at 8:8-10, 8:11-16.
Hirou cites no law in support of his motion. To the extent Hirou premises his motion on Civil Procedure Code section 473(b), the motion is untimely. Section 473(b) permits the court to relieve a party from a judgment or order taken against him through his mistake, inadvertence, surprise, or excusable neglect. “Application for this relief . . . shall be made within a reasonable time, in no case exceeding six months” after the judgment or order was taken. Civ. Proc. Code § 473(b). Hirou filed this motion on June 1, 2022, more than six months after the December 17, 2020 judgment was entered. Section 473.5 does not apply because neither a default nor a default judgment was entered against Hirou.
Hirou has not demonstrated grounds to set aside the December 17, 2020 judgment. Hirou admits he knew about the lawsuit. He offers no explanation for his failure to defend the lawsuit after substituting himself for Griffin, and no evidence he did anything to determine the status of the lawsuit.
Furthermore, even crediting Hirou’s claim that he first learned about the judgment in early December 2021, Hirou did not act diligently. Hirou filed an ex parte application on December 27, 2021 seeking an order setting aside the judgment against Judith Hirou. After the court (Judge Glenn Salter) denied Hirou’s application (see 12/28/21 Order), Hirou waited four months and then filed another ex parte application seeking to aside the judgment. After the court denied that application (see 4/20/22 Order), Hirou waited another six weeks to file this motion—and did so despite the fact the April 20, 2022 order states the denial of the ex parte application “is without prejudice to Hirou’s filing and serving a motion on regular notice and scheduling it for hearing on the court’s law and motion calendar.”
Finally, the record and proceedings in this case demonstrate that setting aside the judgment and order against Hirou would significantly prejudice plaintiffs. As detailed above and in the court file, plaintiffs incurred significant time and expense litigating the case and obtaining a judgment. Hirou’s decision to cease participating in the case does not justify imposing further burden and expense on plaintiffs.
Plaintiffs’ evidentiary objections to Hirou’s unsigned opening declaration were not material to the disposition of the motion.
The court disregarded Hirou’s untimely and unsigned reply declaration and exhibits. Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537 (“The general rule of motion practice, which applies here, is that new evidence is not permitted with reply papers.”).
Plaintiffs to give notice.