Judge Stephen P. Pfahler, Case Number: 23STCP00261, Date: 2024-04-23 Tentative Ruling

Judge: Stephen P. Pfahler, Case: 23STCP00261, Date: 2024-04-23 Tentative Ruling

Case Number: 23STCP00261 Hearing Date: April 23, 2024 Dept: 68

Dept. 68

Date: 4-23-24

Case # 23STCP00261

Trial Date: Not Set

MOTION TO VACATE DEFAULT

MOVING PARTY: Defendant, Miguel Lopez, pro per

RESPONDING PARTY: Plaintiff, Luiz Meono, et al.

RELIEF REQUESTED

Motion to Vacate the Default

SUMMARY OF ACTION

Plaintiffs/Petitioners Luz and Ricardo Meono purchased a certain home from Defendants Rosalio Granados and Miguel Lopez. The Meonos allege Defendants/Respondents failed to disclose third party Araceli Granados occupied the property. Granados refuses to leave the premises.

On January 31, 2023, Petitioners filed a petition to compel arbitration. The petition identifies causes of action for Fraud and Deceit, Negligent Misrepresentation, Breach of Contract, Breach of the Covenant of Good Faith and Fair Dealing, and Petition for Contractual Arbitration. On March 23, 2023, the clerk entered a default against both Rosalio Granados and Miguel Lopez.

RULING: Denied.

Request for Judicial Notice: Granted.

The court takes judicial notice of the previously filed motions, but cannot take notice of the content of any prior pleadings.

Defendant/Respondent Miguel Lopez, in pro per, moves for relief from the default on grounds that Lopez placed an answer in the “courts drop box,” which was apparently “never affixed to the file nor registered in the case docket as having been received.” Plaintiffs/Petitioners in opposition challenge the motion as untimely. The court electronic filing system shows no reply at the time of the tentative ruling publication cutoff.

The subject motion constitutes the third such attempt after two prior denials by the prior court.

Lopez reserved the motion as seeking relief under Code of Civil Procedure section 473.5, but in fact seeks relief under the mistake, inadvertence, excusable neglect standard pursuant to Code of Civil Procedure section 473, subdivision (b).

The court instead considers relief under mistake, inadvertence and/or excusable neglect. Code of Civil Procedure section 473 subdivision (b) provides in part:

“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. 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.”

“The six-month time limit for granting statutory relief is jurisdictional and the court may not consider a motion for relief made after that period has elapsed. (Citation.) The six-month period runs from entry of default, not entry of judgment.” (Manson, Iver & York v. Black (2009) 176 Cal.App.4th 36, 42.) The clerk entered default on February 2, and the subject motion was filed on March 27, 2024, which is more than 180 days of the default entry date. The court therefore lacks jurisdiction to consider the motion on the subject basis. (Ibid.) The motion is therefore untimely and DENIED on this basis.

Defendant Lopez to give notice.