Judge: Michael E. Whitaker, Case: 21SMCV01012, Date: 2024-07-16 Tentative Ruling

Case Number: 21SMCV01012    Hearing Date: July 16, 2024    Dept: 207

TENTATIVE RULING

DEPARTMENT          207

HEARING DATE       July 16, 2024

CASE NUMBER        21SMCV01012

MOTION                    Motion to Vacate Judgment

MOVING PARTY      Plaintiff Wells Fargo Bank, N.A.

OPPOSING PARTY   none

BACKGROUND

On June 7, 2021, Plaintiff Wells Fargo Bank, N.A. (“Plaintiff”) filed a complaint for damages against Defendant Inna Kostina (“Defendant”).  Default was entered against Defendant on August 31, 2021, and default judgment was entered against Defendant on December 11, 2021. 

Plaintiff now moves to vacate the judgment and dismiss the case without prejudice because Defendant has submitted a fraud claim under Code of Civil Procedure sections 473 and 128.  The motion is unopposed.

LEGAL STANDARD – SECTION 473 RELIEF

Per Code of Civil Procedure section 473, subdivision (b), a court may “relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.”

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].) 

The mandatory provision of section 473, subd. (b) requires “an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect[.]”  Otherwise, relief under section 473 is discretionary. 

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.4^th 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.) 

“However, in the case of a judgment, dismissal, order, or other proceeding determining the ownership or right to possession of real or personal property, without extending the six-month period, when a notice in writing is personally served within the State of California both upon the party against whom the judgment, dismissal, order, or other proceeding has been taken, and upon his or her attorney of record, if any, notifying that party and his or her attorney of record, if any, that the order, judgment, dismissal, or other proceeding was taken against him or her and that any rights the party has to apply for relief under the provisions of Section 473 of the Code of Civil Procedure shall expire 90 days after service of the notice”  (Code Civ. Proc., § 473, subd. (b).)

ANALYSIS

With regard to timing, judgment was entered on December 11, 2021, yet Plaintiff did not move to vacate the judgment until May 30, 2024, long after the requisite six months in which Plaintiff may bring the motion.  “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.) 

Further, the motion is not supported by any declaration or affidavit of fault.  Therefore, the Court cannot grant Plaintiff the requested relief under Code of Civil Procedure section 473. 

Moreover, the Court does not find Code of Civil Procedure section 128, subdivision (a)(8) to provide a legal basis to vacate the Judgment which was entered on the request of Plaintiff, especially when Plaintiff has not submitted any evidence in support of the motion.    

Conclusion

            Therefore, the Court denies Plaintiff’s motion to vacate the judgment entered against Defendant on December 11, 2021.   The Clerk of the Court shall provide notice of the Court’ ruling.

DATED: July 16, 2024                                                           ___________________________

Michael E. Whitaker

                                                                                          Judge of the Superior Court