CLJ478883 CITIBANK VS. THOM MASLOW, ET AL.

CITIBANK (SOUTH DAKOTA) N.A. THOM A MASLOW
JANALIE HENRIQUES

THOM MASLOW’S MOTION TO SET ASIDE AND VACATE DEFAULT JUDGMENT AND ENTER ANOTHER AND DIFFERENT JUDGMENT TENTATIVE RULING:

Defendant moves for an order denying renewal of judgment and vacating judgment. The motion to “vacate judgment” is untimely and is DENIED. The motion to “deny renewal” is also DENIED since Defendant has not established any grounds for relief.

1. Defendant’s Motion to Vacate Judgment under C.C.P. section 473(b) is untimely.

Defendant seeks relief only under CCP section 473(b) on the ground that default judgment was taken in error against Defendant due to Defendant’s mistake, inadvertence, surprise, or excusable neglect. Since judgment was entered in 2009, the motion is untimely under this statute. A motion seeking relief under CCP section 473(b) must be filed within 6 months after entry of default. (See Weil & Brown, Civ. Proc. Before Trial, sec. 5:429, p.5-121; see Rogers v Silverman (1989) 216 Cal.App.3d 1114, 1121-1122.)

2. Defendant has not established mistake, inadvertence, etc. under section 473(b)

Even if Defendant’s motion to vacate the judgment was timely, he has not established that the default and default judgment were a result of his mistake, inadvertence, excusable neglect, etc. Defendant provides no evidence or explanation for his failure to respond to the complaint or participate in the litigation at any point within the last ten years. Instead, he merely states in his declaration that he did not receive notice of the judgment, but he says nothing about receiving the complaint, and Plaintiff has filed a proof of service showing the Defendant was personally served with the complaint and summons on December 20, 2008. Based on the above, there is insufficient evidence to support vacating default judgment.

3. Lack of notice of default insufficient in this case to vacate the judgment

Defendant’s primary argument in support of his motion appears to be that he has “not received prior notice of this judgment” or “any documents regarding this judgment.” Though Defendant does not cite to it in his motion, CCP section 587 requires an application for entry of default to include an affidavit stating that a copy of the application has been mailed to defendant. The affidavit requirement, though “mandatory,” is not “jurisdictional,” that is, “failure to comply with that requirement does not deprive the court of jurisdiction to render judgment.” Bae v. T.D. Serv. Co. of Arizona, 245 Cal. App. 4th 89, 107 (2016). “For that reason, noncompliance with the affidavit requirement does not support setting aside a default or default judgment absent a suitable showing of prejudice.” Id. (citing Rodriguez v. Henard (2009) 174 Cal.App.4th 529, 534-38).

In this case, it is not clear from the record that the application for request for entry of default was mailed to the Defendant, as the docket shows the request was filed and default entered, but neither a hardcopy nor an electronic copy of the request is available. Plaintiff also does not challenge Defendant’s statement that he did not receive prior notice of the judgment. However, Defendant has not made a sufficient showing of prejudice. He generally states in the Notice of Motion that the “error materially affected the substantial rights of the Defendant entitling Defendant to a different judgment,” but he does not specify the rights affected by this error and how he was otherwise prejudiced by the lack of notice of the entry of default. Further, Defendant has not raised noncompliance with CCP section 587 as an issue in his moving papers, and it would be unfair to Plaintiff to consider this issue here.

4. Defendant has not established other grounds of relief

Defendant does not explicitly address equitable relief or relief under CCP section 473(d) in his motion, nor does he provide any basis for denying the renewal of judgment. However, Plaintiff addresses these grounds for relief in its opposition, so these grounds are briefly considered below.

a. Equitable Relief

The statutory time limits for relief under C.C.P. section 473 do not apply to equitable relief. (Weil & Brown, supra at 5:436.) There are three essential requirements to obtain such relief: (1) the party in default must show a meritorious defense; (2) a satisfactory excuse for not presenting a defense to the original action; and (3) diligence in seeking to set aside the default once it was discovered. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 982.) Equitable relief is generally available only for “extrinsic fraud or mistake,” which has broadly been interpreted by courts as covering almost any circumstance by which a party has been deprived of a fair hearing. (Weil & Brown, supra at 5:438.) In limited civil cases, such as the case here, the grounds for equitable relief are extended to include “inadvertence or excusable neglect.” Id.; CCP section 86(b)(3).

“When a default judgment has been obtained, equitable relief may be given only in exceptional circumstances.” (Rappleyea, supra at 981.) When relief under C.C.P. section 473 is available, there is a strong public policy in favor of granting relief and allowing the requesting party his or her day in court. (Id. at 982.) Beyond this period, there is a strong public policy in favor of the finality of judgments and only in exceptional circumstances should relief be granted. (Id.)

For the same reasons discussed above, namely Defendant’s lack of explanation for failing to respond to the complaint, in addition to the strong policy favoring the finality of judgments, equitable relief is not granted here.

b. Relief under section 473(d)

Section 473(d) provides that: “The court … may, on motion of either party after notice to the other party, set aside any void judgment or order.” There is no time limit on a motion for relief under Code of Civil Procedure section 473 where it is clear from the face of the record that the judgment should not have been entered. (See Rogers v Silverman (1989) 216 Cal.App.3d 1114, 1121-1122.)

Defendant does not make any argument in his moving papers that the judgment is void, nor does he seek relief under section 473(d), so relief is not granted on this basis. Further, it is not clear from the face of the record that judgment should not have been entered. Calvert v. Al Binali, 29 Cal. App. 5th 954, 960 (Ct. App. 2018) (“A judgment or order is said to be void on its face when the invalidity is apparent upon an inspection of the judgment-roll. . . . Here the invalidity is not shown on the face of the judgment roll.

c. Relief under section 683.170

Contrary to Plaintiff’s assertion, Defendant’s motion to vacate the renewal is timely. The judgment debtor has 30 days after service of the notice of renewal to file a noticed motion to vacate the renewed judgment. CCP section 683.170. Plaintiff filed a proof of service that shows Defendant was served the notice of renewal via mail on May 14, 2019, and Defendant filed this motion on June 10, less than 30 days later.

However, Defendant has not demonstrated that the judgment is incorrect.

The renewal of a judgment pursuant to this article may be vacated on any ground that would be a defense to an action on the judgment, including the ground that the amount of the renewed judgment as entered pursuant to this article is incorrect, and shall be vacated if the application for renewal was filed within five years from the time the judgment was previously renewed under this article.

(Code Civ. Proc., § 683.170, subd. (a).) “The motion to vacate can be made on any ground that would be a defense to an independent action on the judgment, including a claim that the amount of the renewed judgment is incorrect.” (Ahart, Cal. Practice Guide: Enf. J. & Debt (Rutter 5/2016 Update) ¶ 6:80.)

Defendant has cited no authority indicating that any defense would apply in an independent action on the judgment, nor does he specify whether and how the judgment is incorrect. Further, though Defendant requests an order denying renewal, Defendant never explicitly raises section 683.170 as a ground for relief in his moving papers.

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 is required as the tentative ruling affords sufficient notice to the parties. Prevailing party shall provide written notice of entry of the ruling to all parties who have appeared in the action, as required by law and the California Rules of Court.