Judge: Nick A. Dourbetas, Case: 2020-01136802, Date: 2022-08-19 Tentative Ruling

Motion to Set Aside/Vacate Default and Judgment

The motion by defendant Joseph L. Sanders, individually and as Trustee of the Joseph L. Sanders Living Trust Dated October 19, 2005, to set aside default and default judgment is DENIED.  Moving party acknowledges that the motion is untimely under Code Civ. Proc., § 473, subd. (b), and has not provided sufficient evidence to show grounds for equitable relief.  (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 982 [requirements for equitable relief]; Bae v. T.D. Service Company (2016) 245 Cal.App.4th 89, 97-98 [“Extrinsic mistake” is “broadly applied when circumstances extrinsic to the litigation have unfairly cost a party a hearing on the merits”]; see also Yolo County Dept. of Child Support Services v. Myers (2016) 248 Cal.App.4th 42, 47 [“[b]ecause of the strong public policy in favor of the finality of judgments, equitable relief from a default judgment or order is available only in exceptional circumstances”].) 

Moving party has provided sufficient evidence to show that the original default was entered due to extrinsic mistake, in that moving defendant submitted an Answer for filing on 6-2-20, prior to entry of default, but for unknown reasons, the Answer was not processed by the court prior to entry of default on 6-4-20.  (Sanders Decl., ¶¶ 9-10.)  However, moving party has not provided sufficient evidence to show that the ensuing default judgment occurred due to extrinsic mistake.  (Id., ¶¶ 11-22 [moving parties’ use of various addresses and admission that timely responding to post office notices regarding accumulated mail “was not a top priority for me because I rarely received any important mail at either location,” despite service of the summons and complaint at one of these addresses]; Shohat Decl., ¶ 7 and Ex. 6 thereto [showing that moving defendant was served by mail with three separate Requests for Default Judgment by Court to the same address as service of process, as to which moving party’s declaration is silent]; Rasooly v. City of Oakley (2018) 29 Cal.App.5th 348, 357–358 [city nuisance abatement notices sent to address of record sufficient, despite respondent’s election “not to check for his mail at this address for a period of at least 30 days—despite being advised at least twice that he had uncollected certified mail waiting”]; Kramer v. Traditional Escrow, Inc. (2020) 56 Cal.App.5th 13, 29 [“extrinsic fraud and extrinsic mistake are unavailable when a party's own negligence allows the fraud or mistake to occur”].)

These same defects preclude a showing of a satisfactory excuse for not presenting a defense to the original action.  (Rappleyea v. Campbell, supra at 982.)

Further, while moving party’s verified proposed Answer (Ex. 21) is sufficient to demonstrate a meritorious defense (Goya v. P.E.R.U. Enterprises (1978) 87 Cal.App.3d 886, 893-894), moving party has not sufficiently satisfied the final element for equitable relief, i.e. diligence in seeking to set aside the default once it was discovered.  (Rappleyea v. Campbell, supra at 982; Sanders Decl., ¶¶ 38 [moving defendant admits learning of the default judgment sometime between 8-17-21 and 8-31-21], 54-62 [moving defendant and counsel’s decisions not to seek relief earlier]; Carrasco v. Craft (1985) 164 Cal.App.3d 796, 806 [alleged “lack of funds does not, as a matter of law, require the setting aside of the default”]; Kramer v. Traditional Escrow, Inc., supra at 37-38 [once defendant on notice of default, any “decision it makes to further ignore the action is made on its own accord, not for extrinsic reasons … A defendant that has knowledge of a lawsuit against it must be encouraged to act, not sit on its rights”].)

Moving defendant’s request for judicial notice is GRANTED.  (Evid. Code, § 452, subd. (d) [judicial notice of court records]; Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 264-265 [judicial notice of the recordation and legal effect of recorded documents].)

Plaintiff Sandra Shohat shall give notice.