TENTATIVE RULING

Calendar: 1

Date: 12/15/2023

Case No: 21 GDCV01313

Case Name: Sychrony Bank v. Toroussian

MOTION TO SET ASIDE DEFAULT JUDGMENT

Moving Party: Plaintiff Synchrony Bank      

Responding Party: Defendant Arus Toroussian (No Opposition, has not appeared)     

VACATE OR SET ASIDE:

Default Judgment entered on March 28, 2022 

FACTUAL AND PROCEDURAL BACKGROUND:

On March 25, 2022, plaintiff filed a Request for Entry of Default of defendant, which was entered as requested the same date. 

On March 28, 2022, a Judgment by the Court by Default based on plaintiff’s written declaration was filed and signed pursuant to which the court entered judgment in favor of plaintiff and against defendant in the sum of $48,961.25. 

ANALYSIS:

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 since  the judgment was entered, counsel for plaintiff has received notice that defendant claimed fraud on the account, and plaintiff reviewed and confirmed the fraud claim, so that plaintiff now believes that the default and default judgment should be set aside, as judgment was entered due to plaintiff’s mistaken belief that this was a valid account, but plaintiff has now confirmed to plaintiff’s satisfaction that the account was opened or used fraudulently.  [Boone Decl. ¶¶ 6, 7].  Plaintiff requests that the judgment be set aside in the interest of fairness and justice so that plaintiff may dismiss the case with prejudice, as the judgment was obtained by mistake or surprise. 

Relief is sought pursuant to the discretionary provision of CCP § 473(b), which provides:

“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, not plaintiff, 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.  

 

RULING:

[No Opposition]

UNOPPOSED Motion to Set Aside and Vacate Default Judgment is GRANTED.  The default entered on March 25, 2022 and Judgment entered on March 28, 2022 are VACATED.

DEPARTMENT D IS CONTINUING TO CONDUCT AND ENCOURAGE 

AUDIO OR VIDEO APPEARANCES

Please make arrangement in advance if you wish to appear via LACourtConnect by visiting www.lacourt.org to schedule a remote appearance.  Please note that LACourtConnect offers free audio and video appearances.  However, ADVANCE REGISTRATION IS REQUIRED. 

If no appearance is set up through LACourtConnect, or no appearance is otherwise made, then the Court will assume the parties are submitting on the tentative.