A motion to vacate judgment may be pursued through section 663 or section 473 of the California Code of Civil Procedure.
“A judgment or decree, when based upon a decision by the court, or the special verdict of a jury, may, upon motion of the party aggrieved, be set aside and vacated by the same court, and another and different judgment entered, for either of the following causes, materially affecting the substantial rights of the party and entitling the party to a different judgment:
Code Civ. Proc., § 663.
Section 633a further states, “[a] party intending to make a motion to set aside and vacate a judgment, as described in section 663, shall file with the clerk and serve upon the adverse party a notice of his or her intention, designating the grounds upon which the motion will be made, and specifying the particulars in which the legal basis for the decision is not consistent with or supported by the facts, or in which the judgment or decree is not consistent with the special verdict, either:
Code Civ. Proc., § 663a(a).
“The power of the court to rule on a motion to set aside and vacate a judgment shall expire 75 days from the mailing of notice of entry of judgment by the clerk of the court pursuant to Section 664.5, or 75 days after service upon the moving party by any party of written notice of entry of the judgment, whichever is earlier, or if that notice has not been given, 75 days after the filing of the first notice of intention to move to set aside and vacate the judgment. If that motion is not determined within the 75-day period, or within that period as extended, the effect shall be a denial of the motion without further order of the court. A motion to set aside and vacate a judgment is not determined within the meaning of this section until an order ruling on the motion is entered in the permanent minutes of the court, or signed by the judge and filed with the clerk. The entry of an order to set aside and vacate the judgment in the permanent minutes of the court shall constitute a determination of the motion even though that minute order, as entered, expressly directs that a written order be prepared, signed, and filed. The minute entry shall, in all cases, show the date on which the order is entered in the permanent minutes, but failure to comply with this direction shall not impair the validity or effectiveness of the order.” Code Civ. Proc., § 663a(b).
“The moving, opposing, and reply briefs and any accompanying documents shall be filed and served within the periods specified by Section 659a and the hearing on the motion shall be set in the same manner as the hearing on a motion for new trial under Section 660.” Code Civ. Proc., § 663a(d).
Section 473(b) of the Code of Civil Procedure provides another mechanism through a motion to vacate may be filed. A “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.” Code Civ. Proc., § 473(b).
Section 473(b) should be “liberally applied and the power freely exercised to carry out the policy in favor of trial on the merits”. Carrasco v. Craft (1985) 164 Cal.App.3d 796. 803, 5 Witkin Cal. Procedure (2d ed. 1971). Further, in determining the merits of a CCP § 473 motion, the court should take into account the circumstances of the case and the prejudice, if any, to the parties.
Extrinsic mistake is “a term broadly applied when circumstances extrinsic to the litigation have unfairly cost a party a hearing on the merits.” Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981. “The moving party has the burden of showing good cause for relief from a default or a default judgment.” Aheroni v. Maxwell (1988) 205 Cal.App.3d 284, 283.
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. Code Civ. Proc., § 473(b).
The six-month limit is mandatory. “The six month time limit [of Section 473(b)] is jurisdictional; the court has no power to grant relief under Section 473 once the time has lapsed.” Austin v. Los Angeles Unified School District (2016) 244 Cal.App.4th 918, 928. The six-month limit protects the finality of judgments. It also provides repose to litigants and a more certain end to litigation. Arambula v. Union Carbide Corp. (2005) 128 Cal. App. 4th 333, 345.
“However, in the case of a judgment, dismissal, order, or other proceeding determining the ownership or right to possession of real or personal property, without extending the six-month period, when a notice in writing is personally served within the State of California both upon the party against whom the judgment, dismissal, order, or other proceeding has been taken, and upon his or her attorney of record, if any, notifying that party and his or her attorney of record, if any, that the order, judgment, dismissal, or other proceeding was taken against him or her and that any rights the party has to apply for relief under the provisions of Section 473 of the Code of Civil Procedure shall expire 90 days after service of the notice, then the application shall be made within 90 days after service of the notice upon the defaulting party or his or her attorney of record, if any, whichever service shall be later.” Code Civ. Proc., § 473(b).
“No affidavit or declaration of merits shall be required of the moving party. Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.” Code Civ. Proc., § 473(b).
“The court shall, whenever relief is granted based on an attorney’s affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties. However, this section shall not lengthen the time within which an action shall be brought to trial pursuant to Section 583.310.” Code Civ. Proc., § 473(b).
...(“Assurant”) in order to protect itself, since Gleason refused to purchase separate insurance. Following the fire, Assurant and Wells Fargo refused to deal with Gleason. Plaintiff ultimately negotiated a settlement of the underlying matter for full policy limits, but Wells Fargo refused to endorse the check. Plaintiff alleges, unbeknownst to it, Wells Fargo had contacted Gleason and informed him that Plai...
... Motion on Calendar On May 18, 2018, Wells Fargo filed a motion for an order compelling arbitration and staying the civil court proceedings. Plaintiff opposed. On June 22, 2018, the Court granted the motion to compel arbitration and stayed the proceedings. On December 20, 2019, Wells Fargo filed this Petition to Confirm Arbitration Order. The Court is not in receipt of an opposition brief to the petiti...
Feb 21, 2020
Nature of Proceedings: Motion: Summary Judgment/Adjudication TENTATIVE RULING: Plaintiff’s motion for summary judgment is denied. Plaintiff has failed to present evidence that defendant Judi Shor was served with the three-day notice to quit, a requisite element of an unlawful detainer action. BACKGROUND: This is an ...
...triable issues of material fact and it is entitled to judgment as a matter of law. For purposes of the motion, plaintiff seeks possession of the Property only, not holdover damages. Defendants oppose the motion. ANALYSIS: Request for Judicial Notice Defendants have requested that the court take judicial notice of the complaint for breach of contract, etc. filed in the matter of David H. Shor and Judi B. S...
Feb 21, 2020
...v. Sagrero, et al. MOTION TO SET ASIDE DEFAULT JUDGMENT (CCP §§ 473(b), 473.5) TENTATIVE RULING: Defendant Leonardo Orozco’s Motion to Vacate Default Judgment is DENIED. Defendant Armado Sagrero’s Motion to Vacate Default Judgment is GRANTED. THE DECEMBER 18, 2017 ENTRY OF DEFAULT AND APRIL 23, 2019 DEFAULT JUDGMENT ARE HEREBY VACATED. ANALYSIS: On September 25, 2017, Plaintiff California Casualty I...
...the mistake, inadvertence, surprise or neglect of the moving party or its attorney. (Code Civ. Proc., § 473, subd. (b); English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 143.) Although the Motion was brought less than six months after default judgment, setting aside the default judgment would be “an idle act” by the Court because the entry of default was more than six months ago. This situatio...
Feb 20, 2020
MOTION TO AMEND JUDGMENT (CCP § 187) TENTATIVE RULING: Judgment Assignee Andrew Larson’s Motion to Amend Judgment to Include Alter Ego Individual is CONTINUED TO APRIL 27, 2020, at 10:30 a.m. in Department 25, SPRING STREET COURTHOUSE. OPPOSITION: Filed on February 6, 2020 [ ] Late [ ] None REPLY: Filed on Febr...
...Discussion On April 26, 2011, Plaintiff Daisy Sandoval (“Plaintiff”) filed an action for pregnancy discrimination and wrongful termination against Law Offices of Moon Kim, Professional Corporation (“Judgment Debtor”). On April 18, 2013, the parties signed a Stipulation for Settlement (the “Settlement Stipulation”). (Oppo., Kim Decl., ¶ 7, Exh. C.) On May 15, 2013, Plaintiff filed a Notice of Settlement of...
Feb 20, 2020
James E. Blancarte
HEARING ON MOTION TO VACATE ENTRY OF JUDGMENT ON SISTER STATE JUDGMENT / FILED BY STELLA MIRANDA * TENTATIVE RULING: * This case concerns a dispute over $1,396.00 in car parts that ballooned into a much larger Illinois judgment due to a quadrupling provision under Illi...
...move to vacate that judgment, arguing that Illinois lacked personal jurisdiction over them, they were not properly served, and, their motions are timely. For the reasons stated below, each defendant’s motion is granted. Factual background On October 22, 2018, defendant Joseph Miranda, an adult, placed a telephone order for a car hood and several other items from plaintiff. He paid for the Order by credi...
Feb 20, 2020
...at the hearing, the prevailing party shall prepare a proposed order and comply with CRC 3.1312 subdivisions (a), (b), (d) and (e). The Court intends to rule as follows; To deny Plaintiff Rudi Londt's motion to strike Defendants Nationstar Mortgage, LLC's ("Nationstar") pleadings, on the grounds that (i) to the extent Plaintiff merely seeks an order striking Nationstar's pleadings filed in this case, such...
...present motion is actually seeking to vacate the judgment and attorney's fees award against him, it is effectively a motion for reconsideration of multiple prior denials of his requests to vacate the judgment and fee award and, as such, is fatally defective due to Plaintiff's failure to comply with the procedural requirements for seeking such reconsideration. (See Code of Civil Procedure §1008.) The Court...
Feb 20, 2020
MOTION TO SET ASIDE/VACATE DEFAULT (CCP §§ 473(b); 473.5) TENTATIVE RULING: For the foregoing reasons, Defendant Proteus Spann’s Motion to Set Aside Entry of Default is CONTINUED to APRIL 27, 2020 at 10:30 a.m. in Department...
...instant Motion to Set Aside Entry of Default (the “Motion”). On November 7, 2019, the Court continued the hearing on the Motion because no proof of service as to Plaintiff was attached and because the Motion was not based on any legal authority. (11/7/19 Minute Order.) On January 29, 2020, Defendant Spann re-filed the Motion, which included a proof of service demonstrating it was properly served on Plaint...
Feb 20, 2020
James E. Blancarte
...Trustee # 18PR00334 Matter of Carrari Family Trust Est. February 28, 2002 Hearing Date: 2/20/2020 HEARINGS: (1) Dettamanti’s motion to disqualify Andre, Morris & Buttery and Mullen & Henzell LLP, set aside January 15, 2019 order, vacate all pleadings after July2018, issue OSC re imposition of sanctions against counsel, and impose actual and punitive damages, legal fees, and court costs. (2) Detta...
...O’Gara; Request OSC Issue for Sanctions, Statement of Decision, and Request for Further Relief.” The body of the Notice of Motion also seeks the sate aside of the January 15, 2019 order in this case, the set aside or vacation of all pleadings after July 2018, and imposition of actual and punitive damages, legal fees, and court costs for the Estate of Joseph Carrari, The Carrari Family Trust, and Dettamant...
Feb 20, 2020
HEARING ON MOTION TO VACATE ENTRY OF JUDGMENT ON SISTER-STATE JUDGMENT / FILED BY JOSEPH MIRANDA * TENTATIVE RULING: * See line #13.
Feb 20, 2020
...visit: http://www.denoce.com ______________________________________________ The court's tentative ruling is as follows: The court intends to grant Defendant's motion to set aside the default and default judgment, pursuant to: 1) CCP § 473(d) in that service of summons was not valid and did not confer jurisdiction; 2) CCP § 473.5 in that defendant did not receive actual notice of the lawsuit in time to defend;...
...argues that HPC hasn't shown Carner didn't have actual authority and that the evidence clearly shows he had ostensible authority. Regardless, plaintiff argues that HPC unreasonably delayed in filing this motion. Charles Carner states that he has no "corporate level position at HPC." To his knowledge, he has never been identified in any HPC materials as a vice president. (Carner dec., ¶ 4). Carner says his p...
Feb 20, 2020
...(“Tenborg”) and the CEC Eco Solutions, Inc. (“CEC”) (collectively “Defendants”), alleging one cause of action for fraud on the court (the “Complaint”). After Plaintiff filed a motion resulting in the setting aside of the previous dismissal of the case, Defendants were served with the summons and complaint in late October 2019, and filed an answer on November 25, 2019. Defendants have now filed a Speci...
...damages. The judgment in the Tenborg Action was affirmed by the Court of Appeal in 2019. (Defendants Request for Judicial Notice, Exh. B.) Plaintiff’s complaint seeks an equitable order setting aside the judgment in the Tenborg Action, as well as attorney’s fees, damages, interest, and costs of suit. (Complaint, Prayer.) Statements Made Before a Judicial Proceeding The focus of the first prong of the analysis ...
Feb 20, 2020
Lenox v. City of Los Angeles Parking Violation Bureau TENTATIVE RULING: Appellant Duane Lenox Motion to Vacate Judgment is DENIED. ANALYSIS: On July 3, 2019, Appellant Duane Lenox (“Appellant”) filed a Notice of Appeal – Parking (the “Parking Appeal”) regarding citation number 4334805845. The Parking Appeal was set f...
... Motion for Continuance, and Motion to Amend Minute Order (the “Motion”). The Court denied the Motion to Vacate Order etc. on January 14, 2020. On the same date, Appellant filed the instant Motion to Vacate Judgment. To date, no opposition or reply briefs have been filed. Discussion Appellant requests that the Court vacate the Minute Order entered on January 14, 2020. In support of this request, Appellant cites...
Feb 19, 2020
...instant motion to vacate the judgment is "made upon the grounds that the bail was unconstitutionally set, and the bail bond contract is void." In other words, that the court erred on the merits by entering judgment against defendant. Defendant does not identify the procedural basis for its motion. It has styled the motion as one to vacate the judgment. Such a motion would be typically associated with Code of Ci...
...supported by such a showing. Given that defendant here argues that the court erroneously found for the plaintiff on the merits, the instant motion is more in the nature of a motion for new trial. However, a motion for new trial may not be made later than 15 days after the clerk's service of the notice of entry of judgment. (Code Civ. Proc., § 659.) Here, the clerk served notice of entry of judgment on November ...
Feb 19, 2020
... judgment, the motion is granted. Defendants shall make an up-front payment of $1,499,340.98, which includes the lump sum calculations submitted by Plaintiffs, and prejudgment interest of $74,970.48. Post-judgment interest shall not accrue on the prejudgment interest. Periodic payments are ordered on the gross value of the remaining Judgment, which the Court calculates to be $1,572,255.80. Said periodic payment...
...prepare a periodic payment Judgment consistent with the Court's ruling. Defendants' motion for partial judgment notwithstanding the verdict is denied as moot. On Defendants' motion for new trial, the motion is denied on the grounds that the Court finds there was no error in giving jury instruction CACI No. 518. Assuming arguendo that there was error, such error was harmless in that there was no resulting...
Feb 19, 2020
Tamara L Mosbarger
DEFAULT JUDGMENT PROVE-UP CHECKLIST (CRC Rule 3.1800) Case Name: Wendy Crane v. Admaniax, LLC Case #: 18STCV00771 Hearing Date: 2/19/20 (OSC: re Entry of Default Judgment) Defaulting Party: Defendants Admaniax, LL...
...Dusenberry (“Defendants”) Total Amount: $ 486,358.78 BACKGROUND: Plaintiff Wendy Crane (“Plaintiff”) had a written employment agreement with Defendants. Defendants failed to pay Plaintiff her wages and to settle that debt they signed a promissory note for $300,000, which they failed to pay. [X] DEFAULT ENTERED ON: 8/2/19 for Defendants [X] MANDATORY JUDICIAL COUNCIL FORM CIV-100 SUBMITTED FOR ENTRY OF C...
Feb 19, 2020
DEFAULT JUDGMENT PROVE-UP CHECKLIST (CRC Rule 3.1800) Case Name: Wendy Crane v. Admaniax, LLC Case #: 18STCV00771 Hearing Date: 2/19/20 (OSC: re Entry of Default Judgment) Defaulting Party: Defendants Admaniax, LL...
...Dusenberry (“Defendants”) Total Amount: $ 486,358.78 BACKGROUND: Plaintiff Wendy Crane (“Plaintiff”) had a written employment agreement with Defendants. Defendants failed to pay Plaintiff her wages and to settle that debt they signed a promissory note for $300,000, which they failed to pay. [X] DEFAULT ENTERED ON: 8/2/19 for Defendants [X] MANDATORY JUDICIAL COUNCIL FORM CIV-100 SUBMITTED FOR ENTRY OF C...
Feb 19, 2020
...has filed a motion to vacate the judgment that was entered, contending that he was never served with the executed judgment, and it was erroneously entered. That motion is set for hearing on 3/11. This motion is therefore continued until 3/11.
Feb 19, 2020
Plaintiff's Motion to Vacate Judgment – GRANTED pursuant to the Court’s inherent equity power. (Bloniarz v. Roloson (1969) 70 Cal.2d 143, 147.) CV-19-002251 - TORRES, EFRAIN TEJADA VS WORTMAN, THOMAS EPSON - Defendants County of Stanislau...
Feb 19, 2020
Defendant Kelvin Gully's motion to vacate default judgment is taken off calendar for defective service. The motion was not timely served and was mailed to the wrong address. Plaintiff has not opposed this motion. Therefore, objections to defects in service have not been waived. IT IS SO ORDERED. This ruling is the order of the Court, filed as of this date. No formal order is required.
Feb 19, 2020
MOTION TO SET ASIDE/VACATE ORDER (CCP § 473(b)) TENTATIVE RULING: Defendant/Cross-Complainant Paul N. Tauger’s Motion is GRANTED. OPPOSITION: Filed on February 4, 2020 [ ] Late [ ] None REPLY: None filed as of February 11, ...
...(“MSJ”). On October 1, 2019, the Court granted Plaintiff’s MSJ as to the Complaint, but declined to do so as to the Cross-Complaint. On December 19, 2019, Defendant filed the instant Motion to Vacate Judgment (the “Motion”) seeking to vacate the Court’s order granting summary judgment as to the Complaint. On February 4, 2020, Plaintiff filed an Opposition. To date, Defendant has not filed a reply. Legal St...
Feb 18, 2020
James E. Blancarte
...deny defendants’ motion to vacate. Plaintiffs are directed to submit to this court, within 5 days of service of the minute order, a proposed judgment consistent with the court's order. Explanation: I. Motion to Confirm Any party to an arbitration in which an award has been made may petition the court to confirm the award. The petition shall name as respondents all parties to the arbitration and may name a...
...shall: (a) set forth the substance or have attached a copy of the agreement to arbitrate unless the petitioner denies the existence of such an agreement; (b) set forth the names of the arbitrators; and (c) set forth or have attached a copy of the award and the written opinion of the arbitrators, if any. (Code Civ. Proc., §1285.4.) If a petition is duly served and filed, the court shall confirm the award as ...
Feb 18, 2020
...improperly entered. The Order of August 16, 2019 is reinstated. Further, due to the responses of the appraisers that attempting to reach a consensus valuation would be an arbitration, the court is prepared to set a hearing to determine the valuation after hearing from the parties. They should be prepared to discuss appropriate hearing dates. On September 25, 2018, Bruce J. Guttman (“Plaintiff”), individually,...
...dissolution and appoint appraisers pursuant to Corporation Code section 15908.02. The court granted Defendants’ motion and ordered that Defendants post a bond of $125,000 within 72 hours. Further, the court set a procedure for the parties to agree upon three appraisers and to submit a proposed order referring the matter to appraisal by August 2, 2019, subject to a hearing for approval of the order on August ...
Feb 18, 2020
...1285) TENTATIVE RULING: Petitioner Jeffer Mangels Butler & Mitchell, LLP’s Motion to Confirm Arbitration Award is GRANTED. Judgment is entered in favor of Petitioner in the amount of $24,315.01 principal, plus prejudgment interest at 10 percent per annum from the July 22, 2019 date of the Arbitration Award. ANALYSIS: Petitioner Jeffer Mangels Butler & Mitchell, LLP (“Petitioner”) filed the instant action as a Petitio...
...Center fka Tri State USA Regional Center, LLC (“Respondent”) on January 14, 2019. On May 20, 2019, the Court granted the Petition to Compel Arbitration. On October 2, 2019, Petitioner filed the instant Motion to Confirm Arbitration Award. To date, no opposition has been filed. Legal Standard Per Code of Civil Procedure section 1285, “Any party to an arbitration in which an award has been made may petitio...
Feb 18, 2020
...Co., et al. PETITION TO CONFIRM ARBITRATION AWARD (CCP § 1285) TENTATIVE RULING: Petitioner State Farm Mutual Automobile Insurance Company’s Petition to Confirm Arbitration Award is GRANTED. PROPOSED JUDGMENT TO BE FILED WITHIN TEN (10) DAYS. ANALYSIS: Petitioner State Farm Mutual Automobile Insurance Company (“Petitioner”) filed the instant Petition to Confirm Arbitration Award against Starr Liability a...
...(a) Set forth the substance of or have attached a copy of the agreement to arbitrate unless the petitioner denies the existence of such an agreement; (b) Set forth the names of the arbitrator; and (c) Set forth or have attached a copy of the award and the written opinion of the arbitrators, if any.” Per Code of Civil Procedure section 1286, “If a petition or response under this chapter is duly served ...
Feb 18, 2020
...Plaintiffs filed a motion to set aside the dismissal pursuant to CCP §473(b). The Court is not in receipt of an opposition brief. On October 25, 2019, the matter came for hearing. The Court continued the motion to this date or January 10, 2020 in order to provide Plaintiffs sufficient time to ascertain Defendants’ correct address and serve the motion on Defendants. On January 10, 2020, the Court again contin...
...January 21, 2020, Plaintiffs filed a Notice of Ruling of the Continued Motion to Set Aside/Vacate Dismissal, which attached a copy of the Court’s January 10, 2020 order and notice that the hearing on the motion had been continued to this date. The attached proof of service indicates that Defendants were each served at 2701 Gilpin Way, Arcadia, CA 91007 (which is also the address disclosed on Plaintiffs’ July...
Feb 14, 2020
