Judge Virginia Keeny, Case 23VECV00315 2023-05-19 Tentative Ruling

Judge: Virginia Keeny, Case: 23VECV00315, Date: 2023-05-19 Tentative Ruling

Case Number: 23VECV00315 Hearing Date: May 19, 2023 Dept: W

Cesar gabriel casal v. moniece linge slaughter

motion to vacate and set aside the judgment and any default, and to quash any writ of possession/execution

Date of Hearing: May 19, 2023 Trial Date: None set.

Department: W Case No.: 23VECV00315

Moving Party: Defendant Moniece Linge Slaughter

Responding Party: None

BACKGROUND

This is an unlawful detainer action. Plaintiff Cesar Gabriel Casal filed this action against defendant Moniece Linge Slaughter on January 24, 2023, for failure to pay rent. Plaintiff obtained a default judgment against defendant on April 18, 2023, providing for possession only. Plaintiff applied for and obtained a writ of possession on April 25, 2023.

On May 1, 2023, defendant applied ex parte for an order staying execution of the judgment until the hearing on the instant motion to set aside the judgment. The court granted the ex parte application and ordered defendant to serve the instant motion by personal service on plaintiff no later than May 5, 2023. The court further ordered that the opposition was to be filed and served no later than May 12, 2023 and that the execution of judgment is stayed until May 19, 2023. Defendant was also ordered to give notice of the court’s May 1, 2023 order. No opposition has been filed, no notice of ruling for the May 1, 2023 order has been filed, and no proof of personal service of the motion on plaintiff has been filed either.

[Tentative] Ruling

1. Defendant’s Motion to Set Aside the Judgment and Any Default, and to Quash Any Writ of Possession/Execution is CONTINUED.

DISCUSSION

“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…” (CCP §473(b).) CCP § 473 “should be liberally applied and the power freely exercised to carry out the policy in favor of trial on the merits.” (Carrasco v. Craft (1985)164 Cal.App.3d 796, 803.) There is also “a strong policy behind granting relief if the moving party brings the motion for relief within the statutory time.” (Id.)

CCP § 473.5(a) permits the court to set aside a default or default judgment “[w]hen service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him.” The phrase “actual notice” means “genuine knowledge of the party litigant” and does not include constructive or imputed notice to the client. (Tunis v. Barrow (1986) 184 Cal.App.3d 1069, 1077.)

Defendant requests the court to set aside/vacate default under CCP §§ 473.5(a) and 473(b). Defendant contends that she was never served personally and no one at her home received service of anything on her behalf, and any claim that she was served personally is false. While the court finds that defendant has timely moved to set aside the judgment under either of these code provisions, defendant has not provided proof of service of the court’s May 1, 2023 order on plaintiff as directed therein, nor is there a proof of service filed showing personal service of the motion on plaintiff by May 3, 2023, as also directed in the May 1, 2023 order. (Minute Order (5/1/2023).)

Therefore, the court will continue the hearing on this matter to May 26, 2023 at 8:30 a.m. in Department W of this court to allow defendant to complete personal service of this motion on plaintiff and to file proof of service of the same within five calendar days of the date of this order. Plaintiff’s opposition to the motion is due per Code of Civil Procedure section 1005(b).

The court further orders defendant to file proof of service of this order regarding the continuance of the hearing on this motion on plaintiff within five days of the date of this order. If no proof of service is filed by that date, the court will deny the motion to vacate and set aside the judgment for violation of a court order and as a motion intended to delay enforcement of the judgment.