Judge: Stephen P. Pfahler, Case: 22CHCV00695, Date: 2023-03-27 Tentative Ruling

Case Number: 22CHCV00695    Hearing Date: March 27, 2023    Dept: F49

Dept. F-49

Date: 3-27-23

Case #22CHCV00695

VACATE DEFAULT

MOVING PARTY: Defendants, Grace Rodriguez

RESPONDING PARTY: Plaintiffs, Jose Torres, et al.

RELIEF REQUESTED

Motion to Vacate Default

SUMMARY OF ACTION

Plaintiffs Jose and Maria Torres allege defendant, attorney Grace Rodriguez, represented them in an action, Torres v. Olmos, et al. (PC057448). The parties executed a settlement agreement, whereby Defendants in the underlying action were declared prevailing parties, and a judgment of $35,380 was entered against Plaintiffs. Plaintiffs allege Defendant improperly represented them in the underlying action, thereby leading to the judgment.

On August 26, 2022, Plaintiffs, in pro per, filed a complaint for negligence and breach of contract. On November 10, 2022, the clerk entered a default.

RULING: Continued to May 15, 2023.

Defendant Grace Rodriguez moves to vacate the November 10, 2022, entered default on grounds of improper service. The motion entirely relies on the currently reserved, NOT FILED, motion to quash. The motion includes a copy of said unfiled motion. Defendant represents timely reservation of the motion, but contends Plaintiffs “quiet speed to rush” the default to the clerk led to the entry of the default before the apparent filing of the motion to quash.

The motion includes proof of the February 17, 2023, paid reservation for a motion to quash service, as to the August 26, 2022, filed complaint. [Declarations of Michael Kwasigroch & Grace Rodriguez, Ex. 1.] It’s not clear why no motion was actually filed between August 26, 2022 and November 10, 2022 (the default entry date), but the court finds no basis for a finding of wrongful conduct by Plaintiffs. The clerk’s office presumably accepted the submitted default upon finding no actual filed motion, regardless of any paid reservation. Thus, the court declines to set aside the default on the basis of the reservation, yet unfiled motion.

Furthermore, a party need not file a separate motion to quash to seek relief from a default on grounds of improper service. (See Code Civ. Proc., §§ 473, subd. (d), 473.5.) While Defendant effectively merged the two items together in the instant motion, the reliance of the motion to quash prematurely seeks to advance the unfiled motion to quash currently reserved for May 15, 2023. The court declines to consider an unfiled motion presented under the guise of the merged motion.

The February 9, 2023, ex parte order only sought to advance the motion to set aside the default, which apparently seeks to reference the May 15, 2023 referenced, but unfiled motion to quash. Again, the motion to quash still only remains RESERVED and NOT filed. Thus, even if the court elected to consider the content of the motion on the basis of improper service and effectively merge the motions together at the time of the hearing, the court declines to consider the unfiled motion on grounds of improper notice.

The court is also concerned with the notice of the motion. Plaintiffs submitted an opposition to the motion to quash with an identified date of May 15, 2023. Defendant therefore presumably served the motion to quash, but the court declines to determine that Plaintiffs understand the possibility of the subject hearing constituting some form of advancement of an unfiled motion. The plain language of the ex parte motion and order in no way supports such a finding that Plaintiffs should appear on March 27, 2023.

The court therefore continues the subject hearing to be concurrently held with the motion to quash reserved for May 15, 2023—assuming the motion to quash gets filed. If the motion to quash is not TIMELY filed before the May 15, 2023 hearing, the court may deny both motions on grounds of both untimeliness and for the grounds reflected in the instant ruling.

If Plaintiffs appear at the hearing, however, and agree before the court to allow the court to consider all arguments presented in the only filed motion and filed opposition, the court reserves the right to take the matter under submission and issue a ruling after the hearing.

Defendant to provide notice.