Case Number: SC110708    Hearing Date: August 13, 2014    Dept: M

Tentative Ruling
Education Resources Inst. V. Rapale
SC110708

This is a collection action on student loan debt. In February 2012, the Court struck Defendant’s answer and entered her default. On June 18, 2012, the Court entered a default judgment in Plaintiff’s. On June 13, 2014 – i.e., approximately 28 months after entry of default and almost two years after entry of default judgment – Defendant, in propria persona, filed the instant motion seeking to set aside entry of the default judgment. Defendant apparently seeks relief from the judgment under CCP 473(b), CCP 473(d) (void judgment), and the equitable powers of the Court (based on extrinsic fraud). Plaintiff has opposed the motion. Defendant did not file a reply brief.

DENIED:

Having read and considered the moving papers, the court tentatively denies the request to vacate the default and default judgment and rules as follows:

1. CCP 473(b) provides, “The court may, upon any terms as may be just, relieve a party …from a … judgment … taken against him or her through his or her mistake, inadvertence, surprise or excusable neglect…. the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment….”;
2. “There is a strong policy of hearing cases on their merits; any doubts in applying section 473 must be resolved in favor of the party seeking relief from default.” Elston v. City of Turlock (1985) 38 C 3d 227, 233;
3. The discretionary provision of CCP 473(b) allows the Court “upon any terms as may be just,” to “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.” Generale Bank Nederland v. Eyes of the Beholder Ltd. (1998) 61 CA 4th 1384, 1399;
4. “Where the party in default moves promptly to seek relief, and no prejudice to the opposing party will result from setting aside the default and letting the case go to trial on the merits, ‘very slight evidence will be required to justify a court in setting aside the default.’” Miller v. City of Hermosa Beach (1993) 13 CA 4th 1118, 1136;

5. Excusable neglect (i.e., mistake, inadvertence, and surprise) is generally defined as an error a reasonably prudent person under the same or similar circumstances might have made. Zamora v. Clayborn Contracting Group, Inc. (2002) 28 C 4th 249, 258;
6. The party seeking relief under section 473 on the grounds of excusable neglect bears the burden of demonstrating that the neglect, etc. was, in fact, excusable. E.g., Luri v. Greenwald (2003) 107 CA 4th 1119, 1128.
7. “Because the law favors disposing of cases on their merits, ‘any doubts in applying section 473 must be resolved in favor of the party seeking relief from default [citations].’” Rappleyea v. Campbell (1994) 8 C 4th 975, 980, see also Olivera v. Grace (1942) 19 C 2d 570, 576; Sporn v. Home Depot USA, Inc. (2005) 126 CA 4th 1294, 1300;
8. “The state is under no duty to provide counsel for private litigants in civil cases. There is neither reason nor justification for compelling a trial judge to act as a sort of advisory or ‘backup’ counsel.” Gagosian v. Burdick’s Television and Appliances (1967) 254 CA 2d 316, 318. That rule applies notwithstanding that Plaintiff is representing herself;
9. A litigant who decides to appear in propria persona “is entitled to the same, but no greater, consideration than other litigants and attorneys.” Nelson v. Gaunt (1981) 125 CA 3d 623, 638; accord, Bistawros v. Greenberg (1987) 189 CA 3d 189, 193;
10. Plaintiff filed an opposition brief asserting facially-valid reasons why the motion should be denied. Defendant failed to respond to that brief. By failing to respond to the facially-valid arguments, Defendant has, whether or not she intended to do so, conceded their merits;
11. In any event, the Court concludes that Defendant – who, the Court notes, did not expressly move to vacate the default, but only the default judgment – has not presented the Court with any valid reason to vacate the default or the judgment entered pursuant thereto;
12. To the extent that Defendant is moving for relief from entry of default or the default judgment under the discretionary provision of Code of Civil Procedure section 473(b), the motion is without merit: it is not timely brought under the six-month limit of CCP 473(b). A party who seeks discretionary relief under section 473(b) from the entry of a default based on mistake, inadvertence, surprise, or excusable neglect must bring the motion for relief “within a reasonable time,” but “in no case exceeding six months” after the clerk’s entry of the default. CCP 473(b);
13. Here, the Court entered Defendant’s default in February 2012. However, Defendant did not seek relief under CCP 473(b) (i.e., file the motion at bar) until June 13, 2014 – i.e., approximately 28 months after entry of default. The Court acknowledges that there was some difficulty in locating the file, but that was likely due to the fact that Plaintiff did not request the file until May 2013, at the earliest – by that time, the six-month window had already closed;
14. Defendant also moves for relief on the ground of extrinsic fraud. Extrinsic fraud is ordinarily a ground for equitable relief from a default judgment. E.g., Olvera v. Grace (1942) 19 C 2d 570, 576; Rappleyea v. Campbell (1994) 8 C 4th 975. However, Defendant has failed to show any extrinsic fraud;
15. The motion also apparently relies on CCP 473.5, but that statute is inapplicable here. CCP 473.5(a) endows the trial court with authority to vacate a default and/or a default judgment if “service of a summons has not resulted in actual notice to a party in time to defend the action…” (emphasis added). Here, Plaintiff actually served and filed a timely answer to the complaint, and cannot claim a defect in the service of process which led to the entry of her default or the default judgment;
16. Plaintiff repeatedly notified Defendant of the possibility that her answer would be stricken and her default would be entered, and that she nevertheless failed to appear. Plaintiff then informed Defendant of the entry of her default in February 2012 (see, Opp. Exh. H), but she still did not seek relief. Plaintiff’s inaction caused the entry of her default and the default judgment – not any fraud by Plaintiff or any mistake by a court employee;
17. Any assertion made in the moving brief and not specifically addressed herein, is rejected;
18. Motion is denied with prejudice to any motion or application, however denominated, which seeks to directly or indirectly vacate Defendant’s default or the judgment entered pursuant thereto; and
19. Plaintiff shall give notice of today’s rulings and timely file proof of service thereof.