2017-00211010-CL-CL

Portfolio Recovery Associates LLC vs. Asheenal Kumar

Nature of Proceeding: Motion to Set Aside the Default

Filed By: Kozich, S. David

Defendant’s motion to set aside default and default judgment is DENIED without prejudice, as follows.

The notice of motion does not provide notice of the court’s tentative ruling system, as required by Local Rule 1.06, and does not provide the correct address for Dept. 53/54. Moving counsel is directed to contact opposing counsel and advise him/her of Local

Rule 1.06 and the court’s tentative ruling procedure and the manner to request a hearing, along with the correct address for Dept. 53/54. If moving counsel is unable to contact opposing counsel prior to hearing, moving counsel is ordered to appear at the hearing in person or by telephone.

This is a collection matter. Defendant now moves pursuant to Code of Civil Procedure §473(b) to set aside the default entered on 3/9/2018 and the default judgment entered on 5/30/2018 on the grounds both were entered against defendant as a result of defendant’s counsel’s excusable neglect.

Code of Civil Procedure §473(b) provides in pertinent 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.

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.

(Underline added for emphasis.)

First, the Kozich Declaration filed in support of this motion which purports to describe the excusable neglect on which relief is currently sought does not comply with Code of Civil Procedure §2015.5 and thus, the entire declaration is inadmissible.

Second, although the moving papers indicate they are accompanied by defendant’s proposed answer to complaint, the court finds no such answer and thus, based on the express language cited above, this “application shall not be granted.”

Third, the present motion admits that the default was entered on 3/9/2018 and the default judgment was entered on 5/30/2018. However, where relief is sought under Code of Civil Procedure §473(b), the application must be made within six months but the present motion was not served until 12/13/2018, more than six months after entry of default judgment on 5/30/2018. Consequently, this court is without authority to grant defendant relief from either the default or default judgment under §473(b) due to its express six month limitations period (which applies to relief sought under both the discretionary and mandatory provisions of subdivision (b)).

This minute order is effective immediately. No formal order or other notice is required. (Code Civ. Proc. §1019.5; CRC Rule 3.1312.)