2013-00147121-CL-CL

Grant & Weber vs. Roger D. Gaylord

Nature of Proceeding: Motion to Set Aside Judgment

Filed By: Gaylord, III, Roger D.

Self-represented Defendant Roger Gaylord’s motion to set aside judgment pursuant to CCP § 473(b) is denied.

Defendant moves to set aside a judgment pursuant to stipulation that was entered on January 16, 2018 on the grounds that it was entered as a result of inadvertence, surprise, mistake, or excusable neglect.

The Court rejects Defendant’s request in reply that the opposition be stricken. While he claims that the opposition was improperly served, the proof of service reflects that it was served on February 23, 2018 which was 13 court days before the hearing. It is true that the opposition was served by regular mail as opposed to a manner calculated to ensure delivery by the close of the next business day, but Defendant fails to indicate when he actually received the opposition. While the opposition was not filed with the Court until March 6, 2018, only 6 court days before the hearing, the Court still was able to analyze the opposition. Most importantly, however, the motion would have been denied even if it were unopposed and the opposition ultimately played little role in the Court’s analysis.

This case involved a debt owed by Defendant to Dignity Health. The debt had been assigned to Plaintiff Grant & Weber. The matter was ultimately settled and Defendant was to make monthly payments to Dignity Health. The parties executed a stipulation for judgment which was approved by the Court and indicated that if Defendant defaulted on the payments Plaintiff could seek a judgment for $8,421.05 less any payments made on an ex parte basis with no notice to Defendant. The settlement also stated that the Court would immediately dismiss the case without prejudice and reserve the power to set aside the dismissal and order of judgment upon Defendant’s default. Plaintiff presented an ex parte application for judgment on January 17, 2017 for $8,421.05.

The Court previously set aside the judgment pursuant to CCP § 473(b) on May 16, 2017 based on Defendant’s contentions that he was prepared to make the required monthly payments and had been told that he would receive a monthly billing statement but never received the statement. He claimed he contacted Dignity Health for the

statement and was told that there was a billing error and the parties’ stipulation was never sent to the correct department and it was unable to process his payments. The Court set aside the judgment and again entered a dismissal without prejudice in accordance with the parties’ stipulation.

Judgment was again entered on January 16, 2018, after Plaintiff submitted a declaration of default indicating that Defendant had still not made any payments.

Defendant now seeks to set aside the judgment claiming that the original creditor never provided him with an itemized invoice for the underlying charges and he contends that many of the services were not medically necessary and performed over his objection. (Gaylord Decl. ¶¶ 4-9.) Specifically he claims that the care was for his daughter and that Dignity Health forced him to use their ambulance service or they would call Child Protective Services even though he claims she did not need an ambulance. He also argues that Dignity Health utilized an improper “chargemaster” rate and failed to bill his insurance which would have resulted in substantially less fees. (Id. ¶¶ 9-11.) He claims he was prepared to present these defenses at trial but settled the matter on the basis that Dignity Health agreed that the final amount would be negotiated, settled, or arbitrated between Dignity Health and himself afterward. (Id. ¶ 12.)

The motion is denied. The original stipulation for judgment entered on October 23, 2015 which was approved by the Court simply provided that Defendant was required to make monthly payments of $280 starting on December 1, 2015 and that if Defendant defaulted on the payments Plaintiff could seek a judgment for $8,421.05 less any payments made on an ex parte basis with no notice to Defendant. (ROA 43) There was no term requiring Dignity Health to provide him an itemized statement for the underlying services of any term that would indicate that the total amount could be negotiated lower or arbitrated.

The Court must note that in his previous motion to set aside the judgment for his failure to make monthly payments, he never mentioned these supposed terms. Rather, he simply indicated that he had not made the monthly payments because he contacted Dignity Health to begin his monthly payments and was told to wait for a monthly statement so it could process his payments and then never received a monthly statement. He made clear that he was prepared to make the payments and never challenged the amounts owed. After the judgment was previously set aside in May 2017, he again made no payments and now he seeks to set aside the judgment which was entered again based on claims that the settlement entered almost two and one half years ago does not reflect his understanding. This argument is simply not credible. In reality, this is a challenge to the stipulation which was entered in October 2015. As such, the motion pursuant to CCP § 473(b) is untimely as it is more than six months after the stipulation was entered.

In any event, even if viewed as a challenge to the January 2018 judgment, and therefore considered timely, the motion is without merit. Defendant has simply not made payments pursuant to the stipulation and each time judgment has been entered after such failures, he has sought to set it aside pursuant to CCP § 473(b) with varying reasons. Defendant appears to be presenting a moving target in an attempt to avoid making payments pursuant to the stipulation, which he entered into. The Court finds that Defendant has failed to demonstrate that the judgment entered on January 18, 2018 based on his failures to make any payments pursuant to the October 23, 2015

stipulation was the result of inadvertence, surprise, mistake, or excusable neglect. Ultimately, the burden of showing that the judgment was entered through mistake, inadvertence, surprise, or excusable neglect is on the moving party, and in the absence of that showing, it may not be set aside (see, e.g. Luz v. Lopes (1960) 55 Cal. 2d 54, 62.) Indeed, if a party fails to show that a judgment has been taken against him or her through mistake, inadvertence, surprise, or excusable neglect, the court may not grant relief; it has no discretion in the matter. (Iott v. Franklin (1988) 206 Cal. App. 3d 521, 528.)

The motion is denied.

The Court denies Plaintiff’s request for sanctions pursuant to CCP § 128.5 on the basis that Defendant’s motion was frivolous. The Court declines to exercise its discretion to impose sanctions upon Defendant under this section, though it may consider doing so in connection with future motions to set aside.