2016-00190636-CU-PA

Latia Smith vs. Richard Kiser

Nature of Proceeding: Motion to Set Aside Default

Filed By: Gray, Wilma J.

Defendant Richard Kiser’s motion to set aside default is ruled upon as follows.

This is an action for personal injuries arising from a motor vehicle versus pedestrian accident. Defendant’s default was entered on 8/5/2016. Plaintiff filed a request for court judgment on 12/4/2017, however, no default judgment has yet been entered.

Defendant is represented by insurance counsel from Mid-Century Insurance, who was retained on or about 12/18/2017. Defendant moves for relief on the grounds of mistake and excusable neglect. Defendant claims that he is not a lawyer and did not understand the legal system. The Court notes, however, that Defendant fails to proffer his own declaration to support the motion. Only Defendant’s counsel has filed a declaration.

CCP §473(b) provides: “[t]he 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. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.”

“The six-month time limit for granting statutory relief is jurisdictional and the court may not consider a motion for relief made after that period has elapsed. The six-month period runs from entry of default, not entry of judgment. (Manson, Iver & York v. Black

(2009) 176 Cal.App.4th 36, 42 [emphasis added].) Here, default was entered on 8/5/2016. The instant motion was filed on 12/22/2017 – after the six months period expired. The motion is untimely, therefore, the Court has no jurisdiction to rule on the motion. The motion is DENIED.

Although the Court has the inherent power to grant equitable relief based upon extrinsic mistake or fraud and there is no time limit for such a motion, Defendant fails to proffer his own declaration or make any argument regarding extrinsic mistake or fraud. Defendant additionally claims, again without any declaration, that he was not served with a statement of damages. The proof of personal service of the summons and complaint belies Defendant’s argument as it identifies a statement of damages as also having been served. Lastly, Defendant’s reliance on Jade K. v. Vihuri (1989) 210 Cal.App.3d 1459 is inapposite. In Jade K., the insurer intervened and was allowed to move to set aside default judgment against the insured where the insurer had no notice of the action. Here, the insurer has not intervened and is not the moving party on the instant motion.