The People of the State of California ex rel. City of Newport Beach vs. Stephenson
2015-00778390
The Motion to Set Aside Default and Default Judgment filed by defendant John Edward Stephenson is denied.
Defendant has not submitted a proposed Answer, as required by CCP ?473(b).? The caption on defendant?s motion even says his papers include a ?[Proposed] Answer to Complaint?, but defendant failed to submit one.? In addition, the motion is untimely.? The default was entered on 5/19/2015 and the default judgment was entered on 6/12/2015, but defendant did not file this motion until 12/11/2015.? CCP ?473(b) requires that the motion be brought within a reasonable time, not to exceed six months.? Six months already ran on the default, but not the default judgment.? Thus, at most, plaintiff could have the default judgment set aside, but not the default.? However, that would simply result in another default prove-up in which defendant could not participate.? In any case, the court concludes that defendant did not seek to set aside the default judgment (or the default) within a reasonable time.? The Minute Order in this case from 8/24/2015, when plaintiff was seeking to hold defendant in contempt, reflects that the court advised defendant of the default judgment against him.? Yet defendant waited almost four months to file this motion, and has not adequately explained his delay.? In fact, defendant?s papers dwell on plaintiff not allegedly serving defendant with papers by personal service, asserting that at the 8/24/2015 contempt hearing, he ?was not given any other papers or documents concerning any other matters regarding this lawsuit?, completely ignoring the fact that the court notified him of the default.? Finally, defendant has not shown the required mistake, inadvertence, surprise or excusable neglect.? Plaintiff has not provided this court with the letter referenced in his declaration, whereby an attorney on his behalf allegedly requested an extension to respond to the Complaint during defendant?s incarceration.
Plaintiff is ordered to give notice of the ruling.