Judge Ralph C. Hofer, Case 21GDCV00243 2023-02-24 Tentative Ruling

Case No: 21 GDCV00243

Case Name: Synchrony Bank v. Gagikyan

MOTION TO SET ASIDE JUDGMENT

Moving Party: Plaintiff Synchrony Bank

Responding Party: Defendant Tatul Gagikyan (No Opposition, has not appeared)

VACATE OR SET ASIDE:

Default and Default Judgment

FACTUAL AND PROCEDURAL BACKGROUND:

This is a collections action pursuant to which plaintiff Synchrony Bank seeks to recover sums allegedly due on an account for the sum by which plaintiff alleges defendant Tatul Gagikyan has been unjustly enriched by virtue of receiving monetary or other benefit from plaintiff.

On July 7, 2021, plaintiff filed a Request for Entry of Default of defendant, which was entered as requested the same date.

On July 27, 2021, the court entered a judgment by the court by default based on plaintiff’s written declaration in favor of plaintiff and against defendant in the sum of $28,537.48.

The motion is a bit unusual, as it is brought by plaintiff to set aside a default and default judgment plaintiff requested be entered in this action. Plaintiff seeks to set the judgment aside because evidently after the judgment was entered, plaintiff received notification that defendant claimed fraud on the account, and plaintiff reviewed the claim and has now confirmed to its satisfaction that the account was opened or used fraudulently. [Elliot Decl. ¶¶ 6, 8]. Plaintiff requests that in the interest of fairness and justice to defendant, the judgment be set aside so that the action may be dismissed with prejudice.

Relief is sought pursuant to CCP § 473(b), which provides, in pertinent part:

“The court may, upon any terms as may be just, 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. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.”

The relief sought here is not to relieve plaintiff of a judgment “taken against him or her,” but taken against another party. It does not appear that this matter falls within the statute, and the proper way of proceeding would be for defendant to move for relief under this or some other applicable section. The court could require that further action be taken by defendant here. However, since there is little likelihood an order setting aside the judgment under these circumstances will ever be challenged, the court will streamline the process and enter the order as requested. The court recognizes that there are evidently unwarranted consequences to defendant if the judgment is allowed to remain outstanding, and also that plaintiff may be concerned about malicious prosecution, abuse of process or other liability if the judgment is permitted to stand.

Plaintiff’s UNOPPOSED Motion to Set Aside and Vacate Default Judgment is GRANTED. The default entered on July 7, 2021 and Judgment entered on July 27, 2021 are VACATED.

Pursuant to the request of Plaintiff, this action is DISMISSED WITH PREJUDICE.

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