Judge: Peter A. Hernandez, Case: 23PSCV01975, Date: 2024-10-21 Tentative Ruling

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Case Number: 23PSCV01975    Hearing Date: October 21, 2024    Dept: 34

Defendant’s Third Motion to Vacate or Set Aside the Entry of Default is DENIED.

Background  

Plaintiff Billy Jaite (“Plaintiff”) alleges as follows:

Plaintiff and Vanessa Campa (“Defendant”) were in a relationship from approximately May 2017-April 2022. Defendant has been unemployed since November 2018. During Plaintiff’s and Defendant’s relationship, Plaintiff grew close to Defendant’s daughter, Victoria Isabela Fernandez (“Victoria”). Plaintiff paid Defendant’s rent from approximately October 2017 to November 2022, in large part to ensure Victoria would not be homeless. Throughout the years Plaintiff and Defendant had numerous discussions about establishing a trust for Victoria’s exclusive benefit. After Plaintiff and Defendant ended their relationship, Plaintiff made four transfers to Defendant in November and December 2022 totaling $350,000.00, with the mutual understanding and oral agreement that these transfers would be put into the trust established for Victoria. Defendant has ceased all communication with Plaintiff. Defendant is living off the monies and has failed to establish the trust.

On June 30, 2023, Plaintiff filed a complaint, asserting causes of action against Defendant for:

1.               Specific Performance of Contract; and,

2.               Breach of Contract.

On August 17, 2023, Defendant’s default was entered.

An Order to Show Cause Re: Entry of Default Judgment is set for October 21, 2024.

Legal Standard

“When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.” (Code Civ. Proc., § 1008, subd. (a).)

“A party who originally made an application for an order which was refused in whole or part, or granted conditionally or on terms, may make a subsequent application for the same order upon new or different facts, circumstances, or law, in which case it shall be shown by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown. For a failure to comply with this subdivision, any order made on a subsequent application may be revoked or set aside on ex parte motion.” (Code Civ. Proc., § 1008, subd. (b).)

The legislative intent was to restrict motions for reconsideration to circumstances where a party offers the court some fact or circumstance not previously considered, and some valid reason for not offering it earlier. (Gilberd v. AC Transit (1995) 32 Cal.App.4^th 1494, 1500; Mink v. Sup. Ct. (Arnel Develop. Co., Inc.) (1992) 2 Cal.App.4th 1338, 1342; Baldwin v. Home Sav. of America (1997) 59 Cal.App.4th 1192, 1198.) “The burden under section 1008 is comparable to that of a party seeking a new trial on the ground of newly discovered evidence: the information must be such that the moving party could not, with reasonable diligence, have discovered or produced it at the trial.” (New York Times Co. v. Superior Court (2005) 135 Cal.App.4^th 206, 212-213.)

Jurisdiction

At the outset, the court notes that the instant matter was assigned, effective August 8, 2024, to Judge Allison L. Westfahl Kong (“Judge Westfahl Kong”) in Department H at the East District, Pomona Courthouse South. On September 18, 2024, Judge Westfahl Kong continued the hearing on the instant motion to October 21, 2024 in this instant department and advised the parties “that this motion will be heard by Judge Hernandez as it appears to be a Motion for Reconsideration of his order from 6/16/2024.” [1]

The court agrees that the instant motion, while styled as a motion to set aside default pursuant to Code of Civil Procedure section 473(b), is, in actuality, a motion for reconsideration of its June 18, 2024 order denying Defendant’s “Motion to Set Aside Default,” as set forth below. (See Powell v. County of Orange (2011) 197 Cal.App.4th 1573, 1577 [“The name of a motion is not controlling, and, regardless of the name, a motion asking the trial court to decide the same matter previously ruled on is a motion for reconsideration under Code of Civil Procedure section 1008”]. A motion for reconsideration under Code of Civil Procedure section 1008, subdivision (a) must be brought before the same judge who made the order. (Cal. Civ. Proc. § 1008(a).) Subdivision (b) does not require that the same judge hear a renewal motion (see Deauville Restaurant, Inc. v. Superior Court (2001) 90 Cal.App.4th 843, 849-851) but does not preclude this.

The court will proceed to entertain the merits of the motion on this basis.

Request for Judicial Notice

The court denies Defendant’s Request for Judicial Notice (“RJN”) included in paragraph 6 of Defendant’s declaration in support of this motion filed on June 28, 2024. (Gbur v. Cohen (1979) 93 Cal.App.3d 296, 301 (“[J]udicial notice . . . is always confined to those matters which are relevant to the issue at hand.”].)

The court grants Plaintiff’s RJN. “A court may properly take judicial notice of its own records. (Evid. Code, § 452, subd. (e).)” (Garcia v. Sterling (1985) 176 Cal.App.3d 17, 21.)

Discussion[2]

Defendant moves the court, pursuant to Code of Civil Procedure section 473(b), for an order setting aside her default pursuant to an attorney affidavit of fault.

As the parties will undoubtedly recollect, this is Defendant’s third motion to set aside default.

On February 16, 2024, Defendant filed a “Motion to Set Aside Default,” on the basis that she was “not validly served with process of the Summons and did not receive actual notice she was a named party in this matter in time to defend against the action. See Code of Civil Procedure sections 415.20(b) and 473(b)." (Plaintiff’s RJN, Exh. 6).

On April 4, 2024, the court denied the above motion; in doing so, the court stated, in relevant part, as follows:

Defendant cites to Code of Civil Procedure § 473, subdivision (b) as the basis

of her motion (See Motion, 1:28-2:1 and 3:20-4:12); however, it appears from

the foregoing language that Defendant is arguing improper service, which is a subdivision (d) argument (i.e., “[t]he court may, upon motion of the injured party,

or its own motion, correct clerical mistakes in its judgment or orders as entered,

so as to conform to the judgment or order directed, and may, on motion of either

party after notice to the other party, set aside any void judgment or order”) or

possibly a lack of actual notice, which is a Code of Civil Procedure § 473.5

argument generally used in instances where service was made via publication.

Defendant also references surprise and extrinsic fraud in on page 4 of the motion.

Defendant’s motion, however, is not accompanied by any declaration whatsoever,

either disavowing valid service or setting forth facts supporting her argument

based on actual notice, surprise and extrinsic fraud. At any rate, the proof of

service filed July 12, 2023 reflects that substituted service pursuant to Code of

Civil Procedure § 415.20, subd. (b)[3] was effectuated on July 7, 2023 via

Co-Occupant Paloma Gonzales (‘Gonzales’) at 990 N. Park Ave., #205 (‘Park

Avenue Address’) in Pomona by registered process server ‘E. Ratliff.’ (RJN,

Exh. 3).

Plaintiff attests that he was involved in a romantic relationship with

Defendant from around May 2017 until April 2022, that Gonzales is Defendant’s

sister, that Defendant’s residence and only address is the Park Avenue Address

and that he is not aware of any other mailing or residential address for Defendant. (Plaintiff’s Decl., ¶¶ 2-4). A ‘Declaration of Diligence’ attached to the proof of

service reflects that three previous service attempts were made before the

substitute service. (RJN, Exh. 3). The process server further attested in the proof

of service that mail service was made on July 7, 2023, after substitute service.

(Id.)

The motion, then, is denied.” (Id., Exh. 9).

(Order, at p. 2, filed April 4, 2024.)

On May 7, 2024, Defendant filed a “Motion to Set Aside Default,” which was accompanied by a declaration from attorney Douglas Borthwick (“Borthwick”).

On June 18, 2024, the court denied the above motion; in doing so, the court stated, in relevant part, as follows:

            Defendant moves the court for an order, per Code of Civil Procedure § 473,

subdivision (b) (‘Section 473(b)’), setting aside the default entered against her,

on the basis of mistake, inadvertence, surprise, or excusable neglect. . . .

Plaintiff argues that Defendant’s motion should be denied pursuant to Even Zohar

Const. & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830 for

failure to comply with Code of Civil Procedure § 1008 (‘Section 1008’)[4]. Even

Zohar held that section 1008 governs renewed applications under section 473, subdivision (b) for relief from default based on an attorney’s sworn affidavit

attesting to his or her mistake, inadvertence, surprise or neglect.[5]

In this case, Defendant filed her first Motion to Set Aside Default on February 16,

2024, on the basis that she ‘was not validly served with process of the Summons

and did not receive actual notice she was a named party in this matter in time to

defend against the action. See Code of Civil Procedure (‘CCP’) §§ 415.20(b) and

473(b).’ (RJN, Exh. 6). While Defendant referenced only Section § 473(b) in her

notice of motion, the court noted that Defendant was primarily arguing improper

service, ‘which is a subdivision (d) argument. . . or possibly a lack of actual notice,

which is a Code of Civil Procedure § 473.5 argument . . .’ The court, however, also

noted that “Defendant also reference[d] surprise and extrinsic fraud in on [sic] page

4 of her motion.” The court noted that ‘Defendant’s motion. . . [was] not

accompanied by any declaration whatsoever, either disavowing valid service or

setting forth facts supporting her argument based on actual notice, surprise and

extrinsic fraud’ and denied the motion.

In this instant motion, it is unclear to the court whether or not Defendant seeks

mandatory Section § 473(b) relief pursuant to attorney affidavit of fault.[6] ‘[W]hen

faced with a motion for relief under section 473, the trial court does not have to

consider the availability of relief under the mandatory provision unless such relief

is requested in an appropriate manner.” (Luri v. Greenwald (2003) 107 Cal.App.4th

1119, 1126). Regardless, even if it is made pursuant to attorney affidavit of fault, Borthwick’s declaration fails to state that Defendant’s default was entered as a

result of his ‘mistake, inadvertence, surprise or neglect.’

The record reflects that Plaintiff’s request for entry of default was rejected on

August 14, 2023 as premature. On August 17, 2023, Defendant’s default was

entered. (RJN, Exh, 3). On August 21, 2023, Defendant purported to file her

answer. (Id., Exh. 4.) Borthwick’s declaration is silent with respect to the

August 17-21, 2023 time period and why Default’s answer was not timely filed. Borthwick instead focuses on his conduct after Defendant’s default had already

been entered. Accordingly, even if Plaintiff did not have to adhere to Section §

1008 requirements on the basis that Plaintiff first sought discretionary Code of

Civil Procedure § 473(b) relief and now seeks mandatory relief pursuant to that

same section[7], the motion is denied on this basis.

Finally, Defendant’s initial motion referenced extrinsic fraud (and mistake). (See

RJN Exh. 6, 4:8). Defendant’s reliance upon this ground again in her instant

motion warrants compliance with Section § 1008 requirements, which Defendant

has not done.

The motion is denied. (Id., Exh. 14).” (Id., Exh. 14).

(Order, at p. 2, filed June 18, 2024.)

On June 28, 2024, Defendant filed the instant “Motion for Mandatory Relief from Default.” As previously noted by the court, Code of Civil Procedure section 1008 “governs renewed applications under section 473, subdivision (b). . . for relief from default based on an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect.” (Even Zohar, supra, 61 Cal.4th at 833.)

Defendant argues that she is entitled to mandatory relief under Code of Civil Procedure 473(b) since Defendant’s failure to timely file an answer to Plaintiff’s complaint was due a mistake by Borthwick. (Motion, 4:19-25.) Borthwick attests that he “attempted to file an answer  . . . and did not realize until after Plaintiff had moved for a default that somehow [his] Answer had not been accepted by the court.” (Borthwick Decl., ¶¶ 2-3.)

The court determines that Defendant’s motion fails to satisfy the requirements of section 1008 showing what “new or different facts, circumstances, or law are claimed.”  The attorney fault mandatory relief provision was alluded to by Defendant in the second motion. However, even after three attempts, Defendant has failed to meet the requirements of section 1008(a) and, as important, provide the court a coherent explanation as to the reasons why mandatory relief is warranted.

Even if the court agreed that Defendant had complied with section 1008, the result would be the same. First, the court finds the statements made in the declaration vague and problematic, and gives pause to the court finding mandatory relief. Second, the declaration is silent concerning counsel’s attempt at filing the Answer. Was it before the Request for Entry of Default was entered or after? Moreover, the more filings of this nature, the more questions that are raised by the court. Why would an Answer albeit untimely need to be filed if in the two prior Motions to Vacate Defendant has declared (first motion) or argued (second motion) that service was improper or non-existent? If an Answer needed to be filed because Defendant learned a lawsuit against her had been filed, what were the circumstances that led to the untimely filing? The deliberate nature of these piece-meal motions has now, on two occasions, frustrated the court’s role in making a determination to allow this case to proceed. Nevertheless, the court recognizes that even under the mandatory provisions of section 473(b), the court’s role is not to rubber stamp a result given the filing of a bare bone attorney declaration.

Conclusion

Defendant’s motion is denied.