Judge: Robert B. Broadbelt, Case: 22STCV19986, Date: 2024-05-08 Tentative Ruling

Case Number: 22STCV19986    Hearing Date: May 8, 2024    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTY:                 Defendant Cristina Amado Loomis  

RESPONDING PARTY:       Plaintiff Chris Loomis

Motion to Set Aside Default and Default Judgment, if Entered

The court considered the moving and opposition papers filed in connection with this motion.  No reply papers were filed.

DISCUSSION

Defendant Cristina Amado Loomis (“Defendant”) moves the court for an order setting aside her default, entered by the clerk on February 16, 2023, on the First Amended Complaint filed by plaintiff Chris Loomis (“Plaintiff”), pursuant to (1) Code of Civil Procedure section 473, (2) Code of Civil Procedure section 473.5, and (3) Civil Code section 1788.61.

Under section 473, subdivision (b), “[t]he 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.”  (Code Civ. Proc., § 473, subd. (b).)  The “six-month time limitation is jurisdictional; the court has no power to grant relief under section 473 once the time has lapsed.”  (Austin v. Los Angeles Unified School District (2016) 244 Cal.App.4th 918, 928.) 

Similarly, “[w]hen service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action.  The notice of motion shall be served and filed within a reasonable time, but in no event exceeding the earlier of: (i) two years after entry of a default judgment against him or her; or (ii) 180 days after service on him or her of a written notice that the default or default judgment has been entered.”  (Code Civ. Proc., § 473.5, subd. (a).) 

First, the court finds that Defendant’s motion made pursuant to Code of Civil Procedure section 473, subdivision (b) is untimely because it was filed on March 20, 2024, i.e., more than six months after the clerk entered Defendant’s default on February 16, 2023.  (Code Civ. Proc., § 473, subd. (b); Austin, supra, 244 Cal.App.4th at p. 928.)

Second, the court finds that Defendant’s motion made pursuant to Code of Civil Procedure section 473.5 is untimely because (1) Plaintiff has submitted evidence establishing that, on February 24, 2023, he served Defendant with the completed “Request for Entry of Default” form (on which the default of Defendant was entered by the clerk on February 16, 2023), (2) Defendant filed this motion on March 20, 2024, and (3) Defendant therefore did not file and serve this motion no later than 180 days after the February 24, 2023 service of written notice that her default had been entered.  (Seañez Decl., ¶ 8 [“The entered default was served by mail”]; Seañez Decl., Ex. F, p. 1 [February 24, 2023 proof of service of document entitled “Request for Entry of Default”]; Code Civ. Proc., § 473.5, subd. (a).)

Third, the court denies Defendant’s motion made pursuant to Civil Code section 1788.61 because (1) that statute applies to service of a summons that has not resulted in actual notice to a person in time to defend “an action brought by a debt buyer[,]” and (2) Defendant has not shown that this action filed by Plaintiff is “an action brought by a debt buyer[.]”  (Civ. Code, § 1788.61, subd. (a)(1).)

The court therefore denies Defendant’s motion.  (Code Civ. Proc., §§ 473, subd. (b), 473.5; Civ. Code, § 1788.61, subd. (a)(1).)

ORDER

            The court denies defendant Cristina Amado Loomis’s motion to set aside default and default judgment, if entered.  

            The court orders plaintiff Chris Loomis to give notice of this ruling.

IT IS SO ORDERED.

DATED:  May 8, 2024

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court