Case Number: EC060389 Hearing Date: May 02, 2014 Dept: B

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Motion for Order Vacating Default and Default Judgment

This case arises from the Plaintiff’s claim that the Defendants did not repay a loan. No trial is set because defaults were entered against the Defendants on May 13, 2013. The Plaintiff then dismissed Defendant, Sam Aintablian, and obtained a default judgment against the Defendant, Rima Melikyan on October 2, 2013.

This hearing concerns the motion of Rima Melikyan to set aside the default and default judgment. The Defendant seeks relief from the default judgment under CCP section 473(b) on the ground that the default was caused by the Defendant’s mistake and inadvertence. The Defendant provides facts in her declaration to demonstrate that she attempted to file an answer on April 3, 2013, but that the answer was not entered because the Court denied a waiver of costs.

The Defendant’s motion is denied because it is untimely. The motion was not filed within six months of the entry default. The general rule is that the six-month period of CCP section 473(b) runs from the date of default and not from the date of the default judgment. Nemeth v. Trumbull (1963) 220 Cal. App. 2d 788, 791-792. The reason for this rule is that setting aside the default judgment alone would be an idle act. Id. An exception to the rule exists when the objective of the motion to set aside is to vacate a portion of the judgment in excess of that demanded by the complaint, e.g., where two default judgments were entered in a case to award damages on the same claim in the Complaint. Id.

Further, California law holds that setting aside and vacating a default judgment alone is an idle act because the default would stand undisturbed. Howard Greer Custom Originals v. Capritti (1950) 35 Cal. 2d 886, 888-889. The default cut offs a defendant from making any further opposition or objection to the relief which plaintiff’s complaint shows the plaintiff is entitled to demand. Id. A defendant against whom a default has been entered is out of Court and is not entitled to take any further steps in the cause affecting plaintiff’s right of action. Id. The defendant cannot, until the default is set aside in a proper proceeding, file pleadings or move for a new trial, or demand notice of subsequent proceedings. Id. If the default judgment were vacated it would be the duty of the Court immediately to render another judgment of like effect, and the defendants, still being in default, could not be heard in opposition thereto. Id.

In Howard Greer, the defendant sought to set aside the default judgment. The trial court denied the motion and the Court of Appeal affirmed the order based on the reasoning that it sought an idle act.

Accordingly, relief cannot be granted under CCP section 473 if the proceeding invoking relief is instituted or the motion made more than six months after the date of entry of the default. Thompson v. Vallembois (1963) 216 Cal. App. 2d 21, 24 (finding that the Court lacked jurisdiction to grant relief under CCP section 473 after the six month period).

In the pending case, the default was entered against the Defendant on May 13, 2013. The Defendant had six months, or until November 13, 2013, to seek relief under CCP section 473(b).

A review of the Defendant’s motion reveals that she filed it on March 20, 2014. Since the Defendant did not file a motion for relief within six months of the entry of default, her motion is untimely and the court lacks jurisdiction to grant relief.

Therefore, the Court denies the Defendant’s motion to set aside the default and default judgment because the motion is untimely and the Court lacks jurisdiction to grant relief under CCP section 473(b).