AVA INC. VS CLARISSE HERMANN

Tentative Rulings

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.