18-UDL-00862 BELLA ROSES VENTURES LLC VS. AGATON T. GUALBERTO, ET AL.

BELLA ROSES VENTURES LLC AGATON T. GUALBERTO
JOANNA KOZUBAL

MOTION TO VACATE JUDGMENT BY DEFENDANT VIRGINIA C. GUALBERTO TENTATIVE RULING:

The Motion of Defendant Virginia Gualberto (“Defendant”) to Vacate/Set Aside Stipulated Judgment, Recall the Writ and Quash It, and Set the Matter for Trial, is DENIED.

Defendant failed to timely serve this motion on Plaintiff. No proof of service was filed with Defendant’s motion papers. Although Defendant filed an Amended Notice of Motion with a proof of service, it indicates service on Plaintiff’s counsel on May 20, 2019, which is inadequate notice. (See Code of Civ. Proc. § 1005(b).)

Moreover, even if Defendant had timely served Plaintiff with this motion, Defendant fails to establish grounds for setting aside the Stipulated Judgment under Code of Civil Procedure section 473(b). A motion for relief under section 473(b) “shall be made within a reasonable time, in no case exceeding six months, after the judgment….” (Code of Civ. Proc. § 473(b).) Although Defendant’s motion was made within six months of the judgment, it was not made within a reasonable time. Defendant had notice of the judgment, by at least March 20, 2019, when she brought an ex parte application to vacate the judgment or for an order advancing the hearing on a motion to set aside the judgment. However, this motion is being heard two months later, and after possession has already been restored to Plaintiff.

Lastly, Defendant has not established that she is entitled to relief based on a clerical error under Code of Civil Procedure section 473(d). If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to Rule 3.1308(a)(1), adopted by Local Rule 3.10, effective immediately, and no formal order pursuant to Rule 3.1312 or any other notice is required as the tentative ruling affords sufficient notice to the parties.