Judge: Michael E. Whitaker, Case: 19STCV03323, Date: 2023-05-01 Tentative Ruling

Case Number: 19STCV03323    Hearing Date: May 1, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTION

              Defendant Blanca Lopez (Defendant) moves to set aside the Clerk of the Court’s March 17, 2021, entry of default judgment.  Plaintiff Interinsurance Exchange of the Automobile Club (Plaintiff) opposes the motion.   

ANALYSIS

1.      Relief Under Code of Civil Procedure section 473

Code of Civil procedure section 473 “includes a discretionary provision, which applies permissively, and a mandatory provision, which applies as of right.” (Minick v. City of Petaluma (2016) 3 Cal.App.5th 15, 25 (hereafter Minick).) “Section 473 is a remedial statute to be “applied liberally” in favor of relief if the opposing party will not suffer prejudice. Because the law strongly favors trial and disposition on the merits, any doubts in applying section 473 must be resolved in favor of the party seeking relief from default. Unless inexcusable neglect is clear, the policy favoring trial on the merits prevails.” (Minick, supra, 3 Cal.App.5th at p. 24 [cleaned up].)

a.      Mandatory Relief

Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect.

(Code Civ. Proc., § 473, subd. (b).)  “The range of attorney conduct for which relief can be granted in the mandatory provision is broader than that in the discretionary provision, and includes inexcusable neglect. But the range of adverse litigation results from which relief can be granted is narrower. Mandatory relief only extends to vacating a default which will result in the entry of a default judgment, a default judgment, or an entered dismissal.”  (Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 616, emphasis added; Gee v. Greyhound Lines, Inc. (2016) 6 Cal.App.5th 477, 484 [“Generally, the applicability of the mandatory provision is limited to those dismissals procedurally equivalent to defaults”].) 

Here, the Clerk of the Court entered default judgment against Defendant on March 17, 2021.  Defendant then filed the instant motion for relief on March 3, 2023, a little less than two years after the entry of default judgment.  Accordingly, Defendant’s application for relief is untimely and thus the Court finds Defendant cannot seek mandatory relief under Code of Civil Procedure section 473, subdivision (b).

b.      Discretionary Relief

The party or the legal representative must seek such relief “within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (Code Civ. Proc., § 473, subd. (b); see Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980 [“because more than six months had elapsed from the entry of default, and hence relief under section 473 was unavailable”]; People v. The North River Ins. Co. (2011) 200 Ca.App.4th 712, 721 [motion for relief under section 473 must be brought “within a reasonable time, in no case exceeding six months”]). “The six-month limit is mandatory; a court has no authority to grant relief under section 473, subdivision (b), unless an application is made within the six-month period.” (Arambula v. Union Carbide Corp. (2005) 128 Cal.App.4th 333, 340, citations omitted.)

Here, as was noted above, Defendant did not seek relief from the March 17, 2021, entry of default judgment until about a year and a half after the six month deadline.  As such, Defendant’s application for relief is untimely and the Court cannot grant relief under section 473, subdivision (b).

2.      Relief Under Code of Civil Procedure section 473.5

Defendant does not request relief pursuant to Code of Civil Procedure 473.5 in her notice of motion, motion, and declaration in support of motion.  However, she does indicate in her moving papers that she seeks relief on the grounds that she was not served with the Summons and Complaint.  (See Motion pp. 1:18-21, Declaration of Blanca Lopez, ¶ 1.)  Based on Defendant’s arguments in support of relief, the Court finds it appropriate to further analyze Defendant’s motion to set aside under Code of Civil Procedure section 473.5.

Per Code of Civil Procedure section 473.5, “[w]hen service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default judgment and for leave to defend the action.  The notice of motion shall be served and filed within a reasonable time, but in no event exceeding the earlier of: (i) two years after entry of a default judgment against him or her; or (ii) 180 days after service on him of a written notice that the default or default judgment has been entered.”  (Code Civ. Proc., § 473.5, subd. (a).)  “Upon a finding by the court that the motion was made within the period permitted by subdivision (a) and that his or her lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect, it may set aside the default or default judgment on whatever terms as may be just and allow the party to defend the action.”  (Code Civ. Proc., § 473.5, subd. (c).) 

            Here, Plaintiff filed a proof of service with the Court establishing service of the notice of entry of judgment on Defendant, via mail, on March 26, 2021.  Defendant thus had until September 6, 2021, to file a motion for relief from said entry of default judgment.  Here, Defendant did not file her motion for relief until March 3, 2023.  Thus, Defendant is also barred from seeking relief under Code of Civil Procedure section 473.5 based on her untimely application for relief.

CONCLUSION AND ORDER

            Therefore, the Court denies Defendant’s motion for relief from the Clerk of Court’s entry of default judgment against her on March 17, 2021 based on Defendant’s untimely application for relief.  

            The Clerk of the Court shall provide notice of the Court’s ruling.