Judge: Randy Rhodes, Case: 22CHCV00253, Date: 2023-01-17 Tentative Ruling

Case Number: 22CHCV00253    Hearing Date: January 17, 2023    Dept: F51

Dept. F-51

Date: 1/17/23 

Case #22CHCV00253

MOTION TO VACATE SET ASIDE DEFAULT JUDGMENT

Motion Filed: 11/10/22

MOVING PARTIES: Defendant Stacye Rubin Bernstein, aka Stacye C. Rubin (“Moving Defendant”)

RESPONDING PARTY: Plaintiff Dale Kim (“Plaintiff”)

NOTICE: OK 

RELIEF REQUESTED: An order vacating the default judgment entered against Moving Defendant on 9/29/22.

TENTATIVE RULING: The motion is denied.

The parties are reminded to review the 5/3/19 First Amended General Order Re Mandatory Electronic Filing for Civil. When e-filing documents, parties must comply with the “TECHNICAL REQUIREMENTS” which are set forth at page 4, line 4 through page 5, line 12 of the Court’s 5/3/19 First Amended General Order Re Mandatory Electronic Filing for Civil (particularly bookmarking declarations and exhibits). (CRC 3.1110(f)(4).) Failure to comply with these requirements in the future may result in papers being rejected, matters being placed off calendar, matters being continued so documents can be resubmitted in compliance with these requirements, documents not being considered and/or the imposition of sanctions.

BACKGROUND

On 5/5/21, defendants Todd and Stacye Bernstein (collectively, “Defendants”) allegedly executed a $26,700 Note in favor of Plaintiff. The agreement required $1,000 monthly payments with a final payment of $700 due on 10/1/23. Plaintiff alleges Defendants defaulted, thereby rendering the entire balance due and payable.

On 4/14/22, Plaintiff filed his complaint against Defendants for Breach of Promissory Note. On 5/31/22, the clerk entered defaults against both Defendants. On 6/28/22, the Court granted default judgment against both Defendants.

On 8/25/22, the Court granted non-moving defendant Todd Bernstein’s (“Bernstein”) motion to set aside the entry of default and default judgment, denied the motion as to Moving Defendant, and ordered Bernstein to file his answer within 10 days. On 9/12/22, the clerk entered default against Bernstein. On 9/16/22, defendant Todd Bernstein filed his Answer.

On 9/29/22, the Court again granted default judgments against Defendants. On 11/10/22, Moving Defendant filed the instant motion. On 1/3/23, Plaintiff filed his opposition. On 1/9/23, Moving Defendant filed her reply.

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ANALYSIS

­Stacye Rubin Bernstein

Defendant requests relief from the default judgment against her, pursuant to Code of Civil Procedure section 473, subdivision (b). Under the statute, “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.” (Code Civ. Proc. § 473, subd. (b).) “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.” (Ibid.)

Here, the instant motion was filed within 6 months after default judgment was entered against Moving Defendant. The motion is accompanied by a notice thereto, as well as Moving Defendant’s proposed answer in response to Plaintiff’s complaint. (Ex. A to Def.’s Mot.)

The proofs of service of process filed with the court show personal service on Moving Defendant on 4/21/22, and substituted service on her husband (via Moving Defendant) on the same date. The certificate of mailing on proof of substituted service is dated 4/22/22. As such, the deadline for Moving Defendant to respond to Plaintiff’s complaint was 5/23/22, which is 30 days from the date she was personally served. (Code Civ. Proc. § 412.20, subd. (a)(3); Cal. Rules of Court, rule 1.10(b).) As discussed at the 8/25/22 hearing, the deadline for Bernstein, who was served by substitute service, to file his response to the complaint was 6/1/22. (8/25/22 Minute Order, p. 2.)

The validity of the proofs of service are not in dispute, and neither is actual notice to Moving Defendant. Instead, Moving Defendant argues that she “thought as her husband and she were being sued together in the same lawsuit that filing the answer together would be sufficient. She did not realize that because she was served personally and her husband was served with what she later learned was sub-service that her answer was due before his. There was no attempt to avoid service in the Action.” (Def.’s Mot. 2:11–15.)

Plaintiff argues in opposition that Moving Defendant’s conduct does not constitute “mistake, inadvertence, surprise, or excusable neglect” warranting relief. (Pl.’s Opp., 4:13–5:19.) “An ‘honest mistake of law’ can provide ‘a valid ground for relief,’ at least ‘where a problem is complex and debatable,’ but relief may be properly denied where the record shows only ‘ignorance of the law coupled with negligence in ascertaining it.’ … In considering whether a mistake of law furnishes grounds for relief, ‘the determining factors are the reasonableness of the misconception and the justifiability of lack of determination of the correct law.’” (Hopkins & Carley v. Gens (2011) 200 Cal.App.4th 1401, 1412 – 1413.)

Here, Moving Defendant essentially argues is that she was mistaken as to the filing deadline for her own response to Plaintiff’s complaint, assuming it would be the same as the deadline for her husband’s response. (Def.’s Mot. 2:11–15.) Plaintiff argues that the parties communicated with one another at the commencement of this action, but Defendants made no effort to seek an extension to file their responses. (Pl.’s Opp. 5:8–12.) Plaintiff argues that Moving Defendant’s failure to apprise herself of the filing deadlines is therefore inexcusable.

The Court agrees with Plaintiff, particularly where Moving Defendant appears to argue that she was aware of her husband’s filing deadline as a party served by substitute service, yet unaware of her own as a party who was personally served. This argument lacks credibility and is therefore an unreasonable mistake of law.

Accordingly, the Court denies Moving Defendant’s motion to set aside the default judgment entered against her.

Todd K. Bernstein

Moving Defendant further argues that there is no default judgment as against non-moving defendant Bernstein because he filed his answer to Plaintiff’s complaint on 9/16/22. (Def.’s Reply, 2:5–11.) To the extent that Moving Defendant seeks to vacate the default judgment against Bernstein, the issue is not properly before the court.

Moreover, the Court notes that Moving Defendant raises this issue for the first time on reply. Generally, a reply memorandum should not raise new issues but should instead address only the issues raised in the opposition. (American Drug Stores, Inc. v. Stroh (1992) 10 Cal.App.4th 1446, 1453 (“Points raised for the first time in [an appellate] reply brief will ordinarily not be considered, because such consideration would deprive the respondent of an opportunity to counter the argument.”).)

As such, the Court declines to consider this issue at the instant hearing to set aside the default judgment as against Moving Defendant.

CONCLUSION

The motion is denied.