Motion to Vacate Default Judgment (Judge Ross Klein)


Case Number: NC060002??? Hearing Date: August 30, 2016??? Dept: S27

Defendants and Cross-Complainants Norby Acevedo and Mercedes Villeda (?Defendants?) move to vacate the default entered against them on Plaintiff Nancy Downs? cross-complaint. The default was entered on November 13, 2015.

The Court incorporates its written rulings on evidentiary objections by reference.

Nancy Downs filed what Defendants? counsel terms a ?cross-cross-complaint? meaning that rather than amending her complaint to add additional claims she filed a cross-complaint.

The motion is problematic because relief appears to be sought pursuant to the discretionary relief provisions of CCP section 473(b). The notice of motion is silent as to the statutory basis, but the body of the motion at page eight recites the language for discretionary relief. Defense counsel appears to argue that she was never served with the pleading, a point addressed below, but nowhere does she contend the default is void. Counsel does not rely on attorney fault.

The motion focuses on the deficiencies of the pleading as to the elements necessary for relief ? mistake, surprise, inadvertence or excusable neglect.

The only declaration submitted is from attorney Michelle Dobson. The declaration repeats the body of the motion word-by-word. It is, in fact, legal argument that the ?cross-cross-complaint? is no more than a ?plagiarized work? which repeats the allegations of Defendants? own cross-complaint. She complains of a ?pattern of erred service in this matter? as well as ?agreements made out of the court between counsels [sic] not being honored.? The declaration lacks any factual basis on which the Court could grant discretionary relief.

Even had such content been included, the six-month jurisdictional window for discretionary relief expired in April, 2016, and this motion was filed on July 15, 2016.

To the extent that the motion can be construed as contending any default is void for failure to serve the pleading, it is not well-taken. No service of summons was necessary on the ?cross-cross-complaint? because Defendants were already before the Court. It is unclear what Ms. Dobson means when she asserts that there was no service of the ?corrected cross-complaint.? She asserts she was only served with ?an erroneously labeled document captioned the Cross-Cross-Complaint, a pleading that does not exist in the Code of Civil Procedure.? It is fundamental that the captions and titles do not control analysis of a pleading. The pleading is a cross-complaint.

Exhibit 1 to the opposition is a proof of service reflecting service of a cross-complaint on July 20, 2015. The moving papers do not controvert the sworn statement of a registered process server.

The motion is denied.