Motion to Vacate Default Judgment (Judge Klein Ross)


Los Angeles County Superior Court – GGD Courthouse

Case Number: NC060309??? Hearing Date: April 26, 2016??? Dept: 27

PROCEDURAL OVERVIEW

Defendant Angelica?s Tire, Inc. moves to vacate a default and default judgment entered against it.

The proof of service filed by Plaintiff on October 21, 2015 indicates substitute service was effected for Cesar Macias in his capacity as President of the corporation. Delivery was made to Aurelio Garcia, ?person in charge? at 2126 W. Esther St., Long Beach. The registered process server declares he mailed the summons, complaint and other documents on October 13, 2105. Substitute service was complete 10 days later on October 23, 2015.

Defendant?s default was entered by the clerk of the court on December 15, 2015.

Judgment in the sum of $41,863.84 was entered by the court.

The present motion was filed on March 24, 2016.

ANALYSIS

The motion is supported by the declaration of Cesar Macias, which is both brief and vague. Mr. Macias states ?I never received any documentation regarding a lawsuit against my company….? He further states he does not read, write or speak English. He states he received notice of entry of judgment on February 4, 2016 and immediately retained legal representation.

The opposition points out that this declaration is not signed under penalty of perjury, and there is no indication of where the declaration was executed. The declaration is inadmissible and the Court sustains Plaintiff?s objection.

Even if this technical defect was cured, the substance is insufficient to support relief.

Not receiving the ?documentation? is not a denial of effective substitute service. The declaration is clear and articulate and is in English; and it is unclear how Mr. Macias was aware of the contents of his declaration. There is no indication it was translated for him. This inconsistency undermines his credibility.

The motion suffers from another technical defect in that there is no proposed answer. The proposed order would allow defendant 30 days to file an answer. CCP ?473(b) states in relevant part:

The court may, upon any terms as may be just, relieve a party of 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. (Emphasis added)

RULING

The motion is denied.