Judge: Robert B. Broadbelt, Case: BC571210, Date: 2025-02-04 Tentative Ruling

Tentative rulings are sometimes, but not always, posted. The purpose of posting a tentative ruling is to to help focus the argument. The posting of a tentative ruling is not an invitation for the filing of additional papers shortly before the hearing.

Case Number: BC571210    Hearing Date: February 4, 2025    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTY:                 Defendant John Stich

RESPONDING PARTY:       Plaintiff Juan Cruz Rodriguez

Motion to Set Aside Default Judgment and Default

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

DISCUSSION

Plaintiff Juan Cruz Rodriguez (“Plaintiff”) filed the operative First Amended Complaint in this action on July 7, 2015 against, inter alia, defendant John Stich (“Defendant”).

On May 14, 2024, the court granted Plaintiff’s motion for terminating sanctions against Defendant and ordered that Defendant’s answer was stricken.  (May 14, 2024 Order, p. 6:6-9.)  

The clerk entered Defendant’s default on June 11, 2024.  Thereafter, on December 10, 2024, the court entered default judgment in favor of Plaintiff and against Defendant.  (Dec. 10, 2024 JUD-100, ¶ 6.)

Defendant now moves the court for an order setting aside the default and default judgment entered against him on the ground that Defendant’s counsel did not receive, and therefore did not respond to or oppose, the underlying discovery and discovery motions because counsel’s address changed.

First, the court notes that Defendant has cited Civil Code section 1788.61 as a statutory basis for relief in his notice of motion.  (Notice of Mot., p. 2:6-8.)  However, Defendant did not address that statute in his moving papers and, even if he had, the court finds that section 1788.61 is inapplicable because (1) it applies to cases brought by a debt buyer, and (2) this is a wrongful termination action.  (Civ. Code, § 1788.61, subd. (a).)

Second, it is unclear whether Defendant is moving for discretionary or mandatory relief under Code of Civil Procedure section 473, subdivision (b).  (Martin Potts & Associates, Inc. v. Corsair, LLC (2016) 244 Cal.App.4th 432, 438 [“section 473, subdivision (b) ‘contains two distinct provisions for relief from default’ [citation]—one makes relief discretionary with the court; the other makes it mandatory”] [internal citation omitted].)  For example, the notice of motion states that Defendant’s failure to respond to prior filings “was made through inadvertence and excusable error[,]” thereby suggesting that Defendant is moving for discretionary relief.  (Notice of Mot., p. 2:10-12 [emphasis added].)  Similarly, the supporting memorandum states that Defendant requests that the court set aside the default resulting from the issuance of terminating sanctions “due to inadvertence and excusable attorney neglect[,]” again appearing to request discretionary relief.    (Mot., p. 3:14-15 [emphasis added].)  However, directly thereafter, Defendant’s memorandum cites the mandatory relief provision set forth in section 473, subdivision (b).  (Mot., p. 3:15-20.) 

Thus, it is unclear if Defendant has requested discretionary or mandatory relief.  The court therefore evaluates Defendant’s motion under both provisions.

            To the extent that Defendant is moving for mandatory relief based on an attorney affidavit of fault, the court finds that Defendant has not submitted “an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect . . . .”  (Code Civ. Proc., § 473, subd. (b).)

The court acknowledges that Defendant has submitted the declaration of attorney Noah Ornstein in support of his motion.  However, that declaration is not signed under penalty of perjury as required.  (Code Civ. Proc., § 2015.5; Ornstein Decl., p. 7:19-22 [signed without stating the declaration was made under penalty of perjury].)  Thus, this declaration (1) has no evidentiary value, and (2) does not constitute “an attorney’s sworn affidavit” of fault within the meaning of section 473, subdivision (b).  (Code Civ. Proc., §§ 2015.5, 473, subd. (b); ViaView, Inc. v. Retzlaff (2016) 1 Cal.App.5th 198, 217  [the declaration that was not signed under penalty of perjury as required by section 2015.5 “had no evidentiary value”].)  The court therefore finds that Defendant has not supported his request for mandatory relief from default and default judgment.

To the extent that Defendant is moving for discretionary relief based on mistake or excusable neglect, the court finds that (1) such a request is untimely since (i) the clerk entered Defendant’s default on June 11, 2024, but (ii) Defendant filed this motion on December 16, 2024, i.e., more than six months or 182 days after entry of default, and (2) even if Defendant’s motion had been timely filed, it is not supported by evidence establishing the mistake, inadvertence, surprise, or excusable neglect of either Defendant or counsel for Defendant because (i) Defendant’s counsel’s declaration is not signed under penalty of perjury and therefore has no evidentiary value, and (ii) Defendant’s declaration does not state facts establishing such mistake, inadvertence, surprise, or excusable neglect on his own part caused entry of his default and the resulting default judgment.  (Code Civ. Proc., § 473, subd. (b); Jimenez v. Chavez (2023) 97 Cal.App.5th 50, 54 [“the six-month limitations period of the mandatory and discretionary relief provisions is either 182 days or six calendar months, whichever period is longer”], 59 [“Under the discretionary relief provision [citation], a motion to set aside a default judgment must be made no more than ‘six months’ after the default—not the default judgment—is entered”]; Sitch Decl., ¶¶ 1-2.)

Thus, for the reasons set forth above, the court denies Defendant’s motion.  (Code Civ. Proc., § 473, subd. (b).)

ORDER

             The court denies defendant John Stich’s motion to set aside default and default judgment.

            The court orders plaintiff Juan Cruz Rodriguez to give notice of this ruling.

IT IS SO ORDERED.

DATED:  February 4, 2025

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court