Case Number: KC065623 Hearing Date: June 03, 2014 Dept: J

Re: Maria Guadalupe Benevides, et al. v. Laura Vasquez., et al. (KC065623)

MOTION FOR RELIEF FROM DEFAULT JUDGMENT

Moving Party: Defendant Laura Vasquez

Respondent: No opposition filed

POS: Moving OK

This is an action for breach of written lease-to-own agreement for real property located at 16849 Bygrove Street, Covina CA 91722. Plaintiffs allege that the parties entered into an agreement whereby Defendants would pay the mortgage on the home; that Defendants would eventually own the property completely; and that Defendants stopped paying the mortgage and refused to vacate the premises, in breach of the agreement. The Complaint, filed 2/13/13, alleges causes of action for:

1. Quiet Title and Cancellation of Instrument
2. Breach of Contract

On 9/13/13, the Answer of Defendant Laura Vasquez was stricken and her default was entered in ruling on Plaintiffs’ Motion for Evidentiary and/or Terminating Sanctions for discovery abuses, in that Laura Vasquez had repeatedly refused to attend a properly noticed deposition.

A court trial to quiet title to the property was heard on 9/30/13 as to Defendant Salvador Vasquez (who failed to appear), and proceeded as a default judgment prove-up as to Defendant Laura Vasquez (who failed to appear).

On 10/09/13, Judgment was entered in favor of Plaintiffs.

Defendant Laura Vasquez moves pursuant to CCP §473 for relief from the judgment rendered following the court trial, at which she did not appear on grounds of mistake, inadvertence and neglect because: (1) she was in surgery, (2) she was disabled, (3) she does not speak English, and (4) she has a legitimate defense in her valid claim to title of the property.

Code of Civil Procedure section 473(b) provides: “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….”

“Although a trial court has discretion to vacate the entry of a default or subsequent judgment, this discretion may be exercised only after the party seeking relief has shown that there is a proper ground for relief, and that the party has raised that ground in a procedurally proper manner, within any applicable time limits.” Cruz v. Fagor America, Inc. (2007) 146 Cal. App. 4th 488, 495.

Here, Defendant claims that as a result of a surgery, she was disabled at the time of the default and entry of judgment against her. Defendant claims her failure to appear “at the prove-up hearing” on 9/30/13 was due to her illness (Motion, page 3, line 22), and surgery (Motion, page 4, line 4), but these claims are not supported by any facts in her declaration. Documentary evidence is lodged, but it is unauthenticated. She claims a language barrier exists, but her declaration does not mention that she does not speak, read, or understand English. She claims in the Motion of being unfairly targeted, but presents no facts to support this assertion. Further, Defendant does not explain why she failed to appear at her deposition twice, resulting in her Answer being stricken in the first instance.

Moreover, Defendant seeks to set aside the “order at the default prove-up hearing” only, and not the entry of default. Even if the court were to set aside the judgment, that would leave the default entry unaffected. Courts do not require an idle act of vacating a default judgment, where the default entry is valid and not set aside and thus would enable another judgment. Ostling v. Loring (1994) 27 Cal.App.4th 1731, 1743; Brockman v. Wagenbach (1957) 152 Cal.App.2d 603, 616. See also generally Weil & Brown, Cal. Prac. Guide: Civ. Pro. Before Trial (The Rutter Group 2012) ¶5:256.

Finally, Defendant filed this Motion on 4/07/14, more than six months since the entry of default on 9/13/13. Under CCP 473(b), the relief must be sought within a reasonable time not exceeding six months. The six months commences to run from entry of the default, not the judgment. Weil and Brown, Civil Procedure Before Trial, The Rutter Group 2013, ¶5:366). The six months expired on 3/13/14, and Defendant has not explained the delay. Although she vaguely alludes to discovery of something on February 4, 2014, she does not support such claim of delayed discovery with solid facts. Therefore, the motion is also untimely.

The motion is denied.