Case Number: KS018667 Hearing Date: April 06, 2018 Dept: J

Re: State Labor Commissioner, etc. v. Sharam Esmailzadeh, etc., et al. (KS018667)

MOTION FOR AN ORDER SETTING ASIDE DEFAULT JUDGMENT BASED ON DEFECTIVE NOTICE, AND FOR LEAVE TO DEFEND ACTION

Moving Party: Defendant Shahram Esmailzadeh

Respondent: No timely opposition filed (due 3/23/18)

POS: Moving OK

Defendants were assessed penalties for not complying with the minimum wage law. On 2/6/15, Plaintiff filed its “Request that Clerk Enter Judgment and Judgment Labor Code Section 1197.1.” Judgment was entered on that date.

Defendant Shahram Esmailzadeh (“defendant”) moves the court, pursuant to CCP § 473.5, for an order setting aside the default judgment entered against him on 2/6/15 and for leave to defend this action, on the basis that the service of summons did not result in actual notice in time for defendant to defend the action.

“When service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action. The notice of motion shall be served and filed within a reasonable time, but in no event exceeding the earlier of: (i) two years after entry of a default judgment against him or her; or (ii) 180 days after service on him or her of a written notice that the default or default judgment has been entered.” CCP § 473.5(a) (emphasis added).

On 2/6/15, Plaintiff filed its “Request that Clerk Enter Judgment and Judgment Labor Code Section 1197.1.” Judgment was entered on that date. This motion was filed 2/7/18, more than three years later. Even if CCP § 473.5 were deemed to apply in the context of a Labor Code § 1197.1 judgment, the motion is untimely, and denied.