2012-00136696-CL-CL

Northern California Collection Service vs. Amerio Law Firm

Nature of Proceeding:      Motion to Set Aside Default and Judgment by Default

Filed By:    Roy, Corrina

This matter was originally set for hearing on 11/6/2013 but was continued to 12/4/2013
when defendant’s counsel appeared for oral argument without first notifying the Court.
The Court’s original tentative ruling is repeated below.

Defendant Amerio Law Firm, P.C.’s motion to set aside default and default judgment
(CCP 473(b)) is ruled upon as follows.

Plaintiff’s request for judicial notice is granted.  In taking judicial notice of these
documents, the court accepts the fact of their existence, not the truth of their contents.
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(See Professional Engineers v. Dep’t of Transp. (1997) 15 Cal.4   543, 590 [judicial
notice of findings of fact does not mean that those findings of fact are true]; Steed v.
Department of Consumer Affairs (2012) 204 Cal.App.4th 112, 120-121.)

Ashley Amerio, an officer of Defendant, states that on January 30, 2013, she received
the summons and complaint.  (See Declaration of Ashley Amerio.)  On February 13,
2013, she filed Defendant’s Answer, accompanied by Check No. 1083 for payment of
the filing fee. (Id.)  On March 11, 2013, the Court rejected the Answer for failure to pay
the filing fee.  She did not receive notification from the Court that the Answer had been
rejected. (Id.) On March 29, 2013, the request for entry of default was filed and default
judgment entered.  Due to the delay in the Court processing documents, the request
for entry of default and judgment were not entered into the Court’s system until August
9, 2013.  Ms. Amerio received no notification from the Court that a Judgment by
Default had been entered.  (Id.)  Defendant and Plaintiff continued to litigate the case
as though the Answer had been filed. (Id.)  On or about October 2, 2013, she received
a memorandum of costs after judgment. (Id.)

In opposition, Plaintiff argues that the motion is untimely because default was entered
on March 29, 2013 and Plaintiff did not file her motion until October 21, 2013 — more
than 6 months later.  (CCP 473.)  The Court notes, however, that given the delay in
processing default judgments, the default judgment was not processed and posted on
the Court’s CCMS system until August 9, 2013.  Thus, Defendant could not have been
aware that the default judgment was entered until at least August 9, 2013. The Court,
therefore, disagrees that Defendant’s motion is untimely.

Plaintiff also argues the default judgment was not taken as a result of “inadvertence,
mistake, surprise or excusable neglect.”  Plaintiff presents evidence that on March 21,
2013 it advised Defendant that there was no Answer on file and that it would proceed
with default on March 28, 2013 if it did not receive proof that an Answer had been filed.
(Declaration of Andre J. LeLievre, Ex. 23.)  It also served a copy of the request for
entry of judgment.  (RJN, Ex. 17.)

Defendant did not file a reply.

Given the above, the Court is not convinced that the default judgment was taken as a
result of “inadvertence, mistake, surprise or excusable neglect.”  Indeed, Plaintiff
notified Defendant that its answer had not been filed with the Court and provided it an
opportunity to file an answer.  Plaintiff also served Defendant with the request for entry  of default.

Accordingly, the motion is DENIED.

Plaintiff’s objections to the declaration of Corrina Roy is SUSTAINED as it is not under
penalty of perjury.

The minute order is effective immediately.  No formal order pursuant to CRC Rule
3.1312 or further notice is required.

Moving Party is admonished for designating the motion to be heard at 2:00 p.m. in
Department 53.  This matter is assigned to Department 54 case and must be heard at
9:00 a.m. in that Department.  Moving Party must contact Plaintiff’s counsel forthwith
and inform Plaintiff’s counsel of the correct time and Department.  In the event
Plaintiff’s counsel is unable to appear at the 9:00 a.m. hearing, Plaintiff’s counsel must
meet and confer with Defendant’s counsel regarding an alternative date for the hearing
and Defendant’s counsel must call the clerk in Department 54 by no later than 4:00
p.m. on November 5, 2013 to request a different hearing date.