Judge: Salvatore Sirna, Case: 23PSCV03806, Date: 2024-06-17 Tentative Ruling

Case Number: 23PSCV03806    Hearing Date: June 17, 2024    Dept: G

Defendant Christopher Michael Walker’s Motion to Set Aside the Judgment and Any Default, and To Quash Any Writ of Possession/Execution

Respondent: NO OPPOSITION

TENTATIVE RULING

Defendant Christopher Michael Walker’s Motion to Set Aside the Judgment and Any Default, and To Quash Any Writ of Possession/Execution is DENIED WITHOUT PREJUDICE.

BACKGROUND

This is an action on a previous judgment. In February 2013, Bertha Merza brought a collections action in this Court against Michelle Darlene Walker, Christopher Walker, and Norwalk Driving School. In October 2013, Merza obtained a default judgment against the Walkers in the amount of $60,430.00. In August 2013, Merza assigned the judgment to Plaintiff Jean-Pierre Rushing, doing business as Interwest Judgment Recovery.

On December 7, 2023, Rushing filed a complaint against the Walkers on the October 2013 judgment. On December 13, 2023, Rushing’s process server personally served Michelle Walker in West Covina. On the same day, Rushing’s process server personally served Christopher Walker in Eastvale.

On January 30, 2024, the Court entered default against Christopher Walker after Christopher Walker failed to timely file an answer.

On May 29, 2024, Christopher Walker filed the present motion. A hearing on the present motion, case management conference, and OSC Re: Sanctions are set for June 17, 2024.

ANALYSIS

Christopher Walker seeks to set aside the entry of default on the grounds of mistake, inadvertence, surprise, or excusable neglect. For the following reasons, the Court DENIES WITHOUT PREJUDICE the motion.

Pursuant to Code of Civil Procedure section 1005, subdivisions (a)(10) and (b), a motion and its supporting papers must be filed and served at least sixteen court days before the hearing date with an additional five days required if the mailing address is within the State of California. Here, Christopher Walker failed to provide a proof of service that establishes Rushing was timely served with copies of the present motion as required by Code of Civil Procedure section 1005. Because “the court lacks jurisdiction to rule on a motion that has not been properly noticed for hearing on the date in question,” Christopher Walker’s motion is DENIED WITHOUT PREJUDICE. (Diaz v. Professional Community Management, Inc. (2017) 16 Cal.App.5th 1190, 1204-1205.)

CONCLUSION

Based on the foregoing, Christopher Walker’s motion to set aside default is DENIED WITHOUT PREJUDICE.