Judge: Steven A. Ellis, Case: 22STCV23553, Date: 2024-05-23 Tentative Ruling
Case Number: 22STCV23553 Hearing Date: May 23, 2024 Dept: 29
Motion to Set
Aside Dismissal and Vacate Entry of Default filed by Plaintiff Chiamaka Florence
Agina.
Review of Default
Judgment Papers Submitted by Defendant/Cross-Complainant Ernest Rabotte.
Tentative
Plaintiff’s
Agina’s motion filed on March 5, construed as a motion to vacate the dismissal and
the entry of default on the cross-complaint, is denied.
The
Court requests information from Defendant Rabotte regarding his request for
entry of default judgment.
Background
The
parties in this case, Plaintiff Chiamaka Florence Agina (“Agina”) and Defendant
Ernest Rabotte (“Rabotte”) were married for less than three months, from June
29 to September 16, 2020.
Rabotte
filed a dissolution (divorce) petition in Los Angeles Superior Court Case No.
20STFL09757 on September 30, 2020. The
trial was held on May 1, 2023, and a judgment dissolving their marriage was
filed on September 28, 2023.
Agina
filed the Complaint in this action on July 21, 2022, using the Form Complaint
(PLD-PI001 (Rev. January 1, 2007)). On
August 26, 2022, Rabotte filed a demurrer to Agina’s Complaint. On the same
day, Rabotte filed a Cross-Complaint against Agina, asserting causes of action
for intentional tort (assault); intentional tort (battery); intentional tort
(intentional infliction of emotional distress); and negligence (negligent
infliction of emotional distress).
On
December 5, 2022, the Court sustained Rabotte’s demurrer to Agina’s Complaint.
The Court granted Agina leave to file an amended complaint within 30 days.
Agina
did not file an amended complaint. On January 24, 2023, the Court entered an
order dismissing Agina’s Complaint with prejudice.
Agina
did not file an answer or other response to Rabotte’s Cross-Complaint. Agina’s default
on the Cross-Complaint was entered on February 21, 2023.
Rabotte
previously submitted default judgment packet, but there were issues in the
default judgment papers that needed to be addressed before default judgment
could be entered.
Rabotte
filed his most recent default judgment packet on April 8, 2024. Those papers are currently under review by
the Court.
Agina, who is representing herself in pro per, filed a
document with the Court on March 5, 2024, entitled “Declaration of Dismissal
Judgment and a Corrected Complaint.” On
the first page of the document (after the cover page), Agina states that the
relief she is requesting is that “the Court grant my request for damages and
injunctive relief.” On the next page, Agina states (among other things)
that she is “asking for a default judgment to be entered against
defendant.” On the final page (before the exhibits), she states that she
is seeking damages in “the amount of $1.8 million or unlimited amounts.”
In a minute order dated April 18, 2024, the Court stated
that it was unclear what relief Agina is requesting in her March 5 filing. The Court further stated:
“Under all of the circumstances, and
considering the history of this matter and the fact that Plaintiff [Agina] is
representing herself, the Court construes the document Plaintiff filed on March
5, 2024, as a motion (1) to vacate the order dismissing her complaint with
prejudice (dismissal entered January 24, 2023) and (2) to vacate the entry of
default against her on Defendant’s cross-complaint (default entered on February
21, 2023). Although this is not the relief specifically identified in
Plaintiff’s filing, it is relief that Plaintiff would need to obtain, as a
procedural matter, in order for the Court to move forward to hearing
Plaintiff’s claims on the merits.”
So
construed, the motion was set for hearing on May 23, 2024. The Court also (1) gave Agina leave to file
any further evidence or argument with the Court by April 30; (2) ordered Agina
to serve Rabotte with the document filed on March 5 and any other documents
filed with the Court; (3) gave Rabotte leave to file and serve any opposition
by May 10; and (4) gave Againa leave to file and serve any reply by May
16.
The
Court further stated:
“The Court expects strict compliance
with this order. Documents that are not filed and served as required by
this order are subject to being disregarded by the Court.”
Finally,
the Court continued the non-appearance case review regarding the default
judgment packet submitted by Rabotte to May 23 as well.
On
May 9, 2024, Rabotte’s counsel filed and served a declaration in opposition to
Agina’s filing. Counsel stated, among
other things, that he had not received a service copy of the documents that
Agina filed with the Court on March 5.
Agina
has not filed proof of any service or any further documents.
The
Court now has two matters before it.
First, the Court must address Agina’s motion filed on March 5,
2024. Second, the Court must address
Rabotte’s default judgment packet.
Agina’s March 5 Motion to Vacate Order Dismissing
Agina’s Complaint With Prejudice and to Vacate Entry of Default of Agina on the
Cross-Complaint
Legal
Standard
“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… Notwithstanding any other requirements of this section,
the court shall, whenever an application for relief is made no more than six
months after entry of judgment, is in proper form, and is accompanied by an
attorney’s sworn affidavit attesting to his or her mistake, inadvertence,
surprise, or neglect, vacate any (1) resulting default entered by the clerk
against his or her client, and which will result in entry of a default
judgment, or (2) resulting default judgment or dismissal entered against his or
her client, unless the court finds that the default or dismissal was not in
fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.”
(Code Civ. Pro., § 473, subd. (b).)
To qualify for relief
under section 473, the moving party must act diligently in seeking relief
and must submit affidavits or testimony demonstrating a reasonable cause for
the default. (Elston v. City of Turlock (1985) 38 Cal.3d 227, 234.)
“In a motion under section 473 the
initial burden is on the moving party to prove excusable neglect by a preponderance
of the evidence.” (Kendall v. Barker (1988) 197 Cal.App.3d 619, 624.)
“The moving party has a double burden: He must show a satisfactory excuse for
his default, and he must show diligence in making the motion after discovery of
the default.” (Id. at 625.)
In addition, and separately, even
when there is no statutory basis to set aside a default or dismissal, courts
have “the inherent authority to vacate a default and default judgment on
equitable grounds such as extrinsic fraud or extrinsic mistake.” (Bae v. T.D. Service Co. (2016) 245
Cal.App.4th 89, 97; see also, e.g., Rappleyea v. Campbell (1994) 8
Cal.4th 975, 981-982.)
“Extrinsic fraud” generally involves
some act that kept the party seeking relief “in ignorance of the action or
proceeding” or “fraudulently prevented” the party “from presenting his claim or
defense.” (Kulchar v. Kulchar
(1969) 1 Cal.3d 467, 471; see also, e.g., Bae, supra, 245 Cal.App.4th at
p. 97.)
“Extrinsic mistake” is defined
broadly and encompasses “almost any set of
extrinsic circumstances which deprive a party of a fair adversary
hearing.” (In re Marriage of Park
(1980) 27 Cal.3d 337, 342; see also, e.g., Rappleyea,
supra, 8 Cal.4th at p, 981.) There need not
necessarily be a mistake “in the strict sense.”
(Park, supra, 27 Cal.3d at p. 342.) But a mistake is intrinsic, and not extrinsic,
when “a party’s own negligence allows the … mistake to occur.” (Kramer v. Traditional Escrow (2020)
56 Cal.App.5th 13, 29.) Intrinsic mistakes
relate to the merits of the case, such that granting relief would improperly allow
a party to relitigate the case. (Kulchar,
supra, 1 Cal. 3d at pp. 472-73.)
Examples of intrinsic mistakes, or intrinsic fraud, are perjury, failing
to complete discovery, or failing to prepare adequately for trial. (Ibid.)
Courts apply a stringent, three-part test for equitable
relief pursuant to the inherent authority of the court. A party seeking relief on equitable grounds
must show (1) “a satisfactory excuse”; (2) “a meritorious case”; and (3)
"diligence in seeking” relief. (Rappleyea,
supra, 8 Cal.4th at p. 982; see also, e.g., Kramer, supra, 56
Cal.App.5th at p. 29; 1 Weil & Brown, California Practice Guide: Civil
Procedure Before Trial (The Rutter Group 2023), ¶ 5:435.)
Discussion
In the Court’s minute order dated April 18, 2024, the Court ordered
Agina (among other things) to serve Rabotte with the document that she filed
with the Court on March 5. Agina,
however, has not filed any proof of service (or any other document since the
April 18 order). And Rabotte’s counsel
states, under oath, that he did not receive a service copy of the March 5
filing. (Henry Decl., ¶ 3.)
Also
in the minute order dated April 18, 2024, the Court advised the parties that it
“expects strict compliance with this order.”
The Court clearly warned the parties: “Documents that are not filed and
served as required by this order are subject to being disregarded by the Court.”
Agina
has not served Rabotte as required by the Court’s order. The Court understands that Agina is
representing herself in pro per, but she still must comply with Court
orders.
For
this reason alone, Agina’s motion filed on March 5, 2024, treated as a motion
to vacate the order dismissing her complaint with prejudice and to vacate the
entry of default on Rabotte’s cross-complaint against her, is denied.
Second,
and independently, even if the March 5, 2024 document had been properly served
as required by statute and the Court’s order, Agina has not shown any basis to
vacate the order of dismissal or the entry of default.
The
order dismissing Agina’s complaint with prejudice was filed on January 24,
2023. The entry of default on Rabotte’s
cross-complaint was filed on February 21, 2023. Agina did not seek relief from
either order within six months. Nor did
she present evidence of any mistake, inadvertence, or other basis for relief
under Code of Civil Procedure section 473, or any extrinsic fraud or mistake (or
diligence) that would provide a basis for equitable relief beyond the six-month
time limit of section 473. For these
additional reasons as well, Agina’s request for relief is denied.
Conclusion
The
Court DENIES Plaintiff Agina’s requests for relief from the dismissal of her
complaint and from her default on Rabotte’s cross-complaint.
Rabotte
is ordered to give notice.
Review of Default
Judgment Papers Submitted on April 8, 2024
Default
was entered against Agina on Rabotte’s cross-complaint on on February 21, 2023.
The Court has reviewed the default judgment packet on April 8, 2024.
There
remain one issue that must be addressed before default judgment may be entered.
Rabotte
seeks $11,450.00 in special damages, $435.00 in costs, and $100,000.00 in
general damages. The special damages and
costs are adequately supported, but the request for $100,000 in general damages
is not adequately supported by the evidence submitted.
Rabotte
may resubmit default judgment papers seeking a lesser amount of general damages
(or providing additional evidence), or he may submit on this evidence, and the
Court will make a determination of the amount of general damages that have been
proven on this record.
(To the
extent that the general damages sought are essentially punitive damages, Rabotte
has not made the required showing of Agina’s wealth. [Devlin v. Kearny Mesa AMC/Jeep/Renault,
Inc. (1984) 155 Cal.App.3d 381.].)
The Court
requests that Rabotte provide clarification on this issue.