On 05/17/2019 AVA INC filed a Contract - Other Contract lawsuit against CLARISSE HERMANN. This case was filed in Los Angeles County Superior Courts, Spring Street Courthouse located in Los Angeles, California. The Judge overseeing this case is WENDY CHANG. The case status is Disposed - Judgment Entered.
*******4823
05/17/2019
Disposed - Judgment Entered
Los Angeles County Superior Courts
Spring Street Courthouse
Los Angeles, California
WENDY CHANG
AVA INC. DBA RELIABLE ROOFING
HERMANN CLARISSE
HAGOPIAN SHANT
COTE DANIEL ROBERT
1/12/2021: Opposition (name extension) - Opposition to Defendant's Motion to Set Aside Default Judgment
1/12/2021: Declaration (name extension) - Declaration in Support of Opposition to Defendant's Motion to Set Aside Default Judgment
10/30/2020: Declaration (name extension) - Declaration RE Lost Writ
10/30/2020: Memorandum of Costs After Judgment, Acknowledgment of Credit, and Declaration of Accrued Interest - Memorandum of Costs After Judgment, Acknowledgment of Credit, and Declaration of Accrued Interest
11/19/2020: Writ of Execution - Writ of Execution (Los Angeles)
1/22/2020: Demurrer - without Motion to Strike - Demurrer - without Motion to Strike
3/2/2020: Request for Dismissal - Request for Dismissal
3/6/2020: Declaration Pursuant to 585 CCP in Support of Default Judgment - Declaration Pursuant to 585 CCP in Support of Default Judgment
3/6/2020: Request for Entry of Default / Judgment - Request for Entry of Default / Judgment
3/26/2020: Judgment - Judgment Proposed Judgment
5/13/2020: Application for Issuance of Writ of Execution, Possession or Sale - Application for Issuance of Writ of Execution, Possession or Sale
6/17/2020: Abstract of Judgment - Civil and Small Claims - Abstract of Judgment - Civil and Small Claims
7/21/2020: Application for Issuance of Writ of Execution, Possession or Sale - Application for Issuance of Writ of Execution, Possession or Sale
11/12/2019: Declaration (name extension) - Declaration Declaration of Vahe Kalashyan in Support of Default Judgment
11/12/2019: Declaration (name extension) - Declaration Declaration of Shant Hagopian in Support of Default Judgment
12/5/2019: Notice of Rejection - Application for Default Judgment by Court - Contract or Tort - Notice of Rejection - Application for Default Judgment by Court - Contract or Tort
5/17/2019: Civil Case Cover Sheet - Civil Case Cover Sheet
5/17/2019: Notice of Case Assignment - Limited Civil Case - Notice of Case Assignment - Limited Civil Case
DocketUpdated -- Writ of Execution (Los Angeles): Filed By: AVA INC. (Plaintiff); Result: Returned and Filed; Result Date: 02/08/2021
DocketWrit - Return ( Unsatisfied);; Costs Credits: 0.00; Interest Credits: 0.00; Principal Credits: 0.00; Possession: No; Judgment Satisfaction Type: Unsatisfied
DocketNotice of Ruling; Filed by: AVA INC. (Plaintiff); As to: CLARISSE HERMANN (Defendant)
DocketMinute Order (Hearing on Motion to Set Aside/Vacate Default and Default Jud...)
DocketHearing on Motion to Set Aside/Vacate Default and Default Judgment (CCP 473.5) scheduled for 01/26/2021 at 09:00 AM in Spring Street Courthouse at Department 26 updated: Result Date to 01/26/2021; Result Type to Held - Motion Denied
DocketOpposition to Defendant's Motion to Set Aside Default Judgment; Filed by: AVA INC. (Plaintiff)
DocketDeclaration in Support of Opposition to Defendant's Motion to Set Aside Default Judgment; Filed by: AVA INC. (Plaintiff)
DocketRequest for Judicial Notice; Filed by: AVA INC. (Plaintiff)
DocketProof of Service by Mail; Filed by: AVA INC. (Plaintiff); As to: CLARISSE HERMANN (Defendant)
DocketWrit of Execution (Los Angeles); Issued by: AVA INC. (Plaintiff); As to: CLARISSE HERMANN (Defendant); County: Los Angeles
DocketDefault entered as to CLARISSE HERMANN; On the Complaint filed by AVA INC. on 05/17/2019
DocketProof of Personal Service; Filed by: AVA INC. (Plaintiff); As to: CLARISSE HERMANN (Defendant); Service Date: 05/29/2019; Service Cost: 104.13; Service Cost Waived: No
DocketNon-Jury Trial scheduled for 11/13/2020 at 08:30 AM in Stanley Mosk Courthouse at Department 94
DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 05/20/2022 at 08:30 AM in Stanley Mosk Courthouse at Department 94
DocketCase assigned to Hon. Wendy Chang in Department 94 Stanley Mosk Courthouse
DocketComplaint; Filed by: AVA INC. (Plaintiff); As to: CLARISSE HERMANN (Defendant)
DocketSummons on Complaint; Issued and Filed by: AVA INC. (Plaintiff); As to: CLARISSE HERMANN (Defendant)
DocketCivil Case Cover Sheet; Filed by: AVA INC. (Plaintiff); As to: CLARISSE HERMANN (Defendant)
DocketNotice of Case Assignment - Limited Civil Case; Filed by: Clerk
DocketFirst Amended Standing Order; Filed by: Clerk
Case Number: 19STLC04823 Hearing Date: January 26, 2021 Dept: 26
Ava, Inc. v. Hermann, et al.
VACATE DEFAULT AND DEFAULT JUDGMENT
(CCP § 473(b))
TENTATIVE RULING:
Defendant Clarisse Hermann’s Motion to Vacate Default and Default Judgment is DENIED.
ANALYSIS:
Plaintiff Ava, Inc. dba Reliable Roofing (“Plaintiff”) filed the instant action for breach of construction contract, common counts and foreclosure of mechanic’s lien against Defendant Clarisse Hermann (“Defendant”) on May 17, 2019. Following her failure to respond, the Court entered default against Defendant on September 10, 2019.
Defendant sought to file a demurrer to the Complaint, which the Court placed off calendar on March 2, 2020. At the March 2, 2020 hearing, where Defendant was represented by counsel, the Court explicitly ruled: “As Defendant is in default, she is out of court and can file no request for relief with the Court other than a motion to vacate the entry of default.” (Minute Order, 3/2/20.) The Court also set an Order to Show Cause regarding Default Judgment for June 1, 2020. (Ibid.) Upon submission of Plaintiff request for default judgment, the Court entered judgment against Defendant on March 26, 2020. Notice of the entry of judgment was served on Defendant on March 30, 2020. (Notice of Entry of Judgment, filed 3/30/20.)
Defendant filed the instant Motion to Vacate Default and Default Judgment on September 23, 2020. Plaintiff filed an opposition on January 12, 2021.
Discussion
Defendant moves for relief from the default and default judgment pursuant to Code of Civil Procedure section 473, subdivision (b). Under this statute, an application for relief must be made no more than six months after entry of the order from which relief is sought, and must be accompanied by an affidavit of fault attesting to 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.) The motion is brought pursuant to discretionary relief prong of section 473, subdivision (b) for Defendant’s own mistake, inadvertence, surprise or neglect.
The Court finds relief is not timely sought under the statute. Default was entered on September 10, 2019, but the instant Motion was filed more than a year later on September 23, 2020. The six-month deadline is jurisdictional and not subject to tolling. (Manson, Iver & York v. Black (2009) 176 Cal.App.4th 36, 42.) The Court has no authority to relieve Defendant from the entry of default under this statute. Furthermore, relief from the default judgment is also not available when the motion is brought more than six months after entry of default. As the Court of Appeals explained, if the court “could not set aside the default, it also could not set aside the default judgment under Code of Civil Procedure section 473, because that would be ‘an idle act.’” (Pulte Homes Corporation v. Williams Mechanical, Inc. (2016) 2 Cal.App.5th 267, 273.) Therefore, relief from the entry of default and default judgment under the discretionary provision of Civil Procedure section 473, subdivision (b) is not available to Defendant.
Conclusion
Defendant Clarisse Hermann’s Motion to Vacate Default and Default Judgment is DENIED.
Plaintiff to give notice.
Case Number: 19STLC04823 Hearing Date: March 02, 2020 Dept: 26
Ava, Inc. v. Hermann, et al.
DEMURRER
(CCP § 430.31, et seq.)
TENTATIVE RULING:
Defendant Clarisse Hermann’s Demurrer to the Complaint is PLACED OFF CALENDAR.
ORDER TO SHOW CAUSE RE DEFAULT JUDGMENT IS SET FOR 06/01/20 AT 08:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE. FAILURE TO APPEAR MAY RESULT IN THE ACTION BEING DISMISSED.
ANALYSIS:
Plaintiff Ava, Inc. dba Reliable Roofing (“Plaintiff”) filed the instant action for breach of construction contract, common counts and foreclosure of mechanic’s lien against Defendant Clarisse Hermann (“Defendant”) on May 17, 2019. Following her failure to respond, the Court entered default against Defendant on September 10, 2019. The Court thereafter twice rejected Plaintiff’s requests for default judgment. On January 22, 2020, Defendant filed the instant Demurrer. Plaintiff filed an opposition on February 18, 2020.
As Defendant is in default, she is out of court and can file no request for relief with the Court other than a motion to vacate the entry of default. (Steven M. Garber & Assocs. v. Eskandarian (2007) 150 Cal.App.4th 813, 819.) Therefore, the Demurrer to the Complaint is PLACED OFF CALENDAR.
ORDER TO SHOW CAUSE RE ETNRY OF DEFAULT JUDGMENT IS SET FOR 06/01/20 AT 08:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE. FAILURE TO APPEAR MAY RESULT IN THE ACTION BEING DISMISSED.
Court clerk to give notice.
Parties may submit via e mail until Monday at 10 a.m.
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