This case was last updated from Los Angeles County Superior Courts on 07/14/2021 at 06:04:11 (UTC).

CLIFFORD JOHNSON VS JOEL PORTILLO, ET AL.

Case Summary

On 11/14/2019 CLIFFORD JOHNSON filed a Civil Right - Other Civil Right lawsuit against JOEL PORTILLO. This case was filed in Los Angeles County Superior Courts, Spring Street Courthouse located in Los Angeles, California. The Judge overseeing this case is JAMES E. BLANCARTE. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******0547

  • Filing Date:

    11/14/2019

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Civil Right - Other Civil Right

  • Courthouse:

    Spring Street Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Judge

JAMES E. BLANCARTE

 

Party Details

Plaintiff

JOHNSON CLIFFORD

Defendants

PORTILLO ABELINA

PORTILLO JOEL

Attorney/Law Firm Details

Plaintiff Attorney

MEHRBAN MORSE

Defendant Attorney

COHEN PAUL J.

 

Court Documents

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

8/26/2020: 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

Motion to Vacate (name extension) - Motion to Vacate NOTICE OF MOTION AND MOTION FOR ORDER VACA TING AND SETTING ASIDE DEFAULT (AND DEFAULT JUDGMENT)], SUPPORTING DECLARATION, AND MEMORANDUM OF POINTS

9/4/2020: Motion to Vacate (name extension) - Motion to Vacate NOTICE OF MOTION AND MOTION FOR ORDER VACA TING AND SETTING ASIDE DEFAULT (AND DEFAULT JUDGMENT)], SUPPORTING DECLARATION, AND MEMORANDUM OF POINTS

Minute Order - Minute Order (Hearing on Motion to Vacate NOTICE OF MOTION AND MOTION FOR O...)

2/3/2021: Minute Order - Minute Order (Hearing on Motion to Vacate NOTICE OF MOTION AND MOTION FOR O...)

Minute Order - Minute Order (Hearing on Motion to Vacate NOTICE OF MOTION AND MOTION FOR O...)

4/5/2021: Minute Order - Minute Order (Hearing on Motion to Vacate NOTICE OF MOTION AND MOTION FOR O...)

Supplemental Declaration (name extension) - Supplemental Declaration DEFENDANT' SUPPLEMENTAL BRIEFING IN SUPP. OF MTN. TO SET ASIDE DEFAULT

5/11/2021: Supplemental Declaration (name extension) - Supplemental Declaration DEFENDANT' SUPPLEMENTAL BRIEFING IN SUPP. OF MTN. TO SET ASIDE DEFAULT

Certificate of Mailing for - Certificate of Mailing for (Hearing on Motion to Vacate NOTICE OF MOTION AND MOTION FOR O...) of 05/26/2021

5/26/2021: Certificate of Mailing for - Certificate of Mailing for (Hearing on Motion to Vacate NOTICE OF MOTION AND MOTION FOR O...) of 05/26/2021

Minute Order - Minute Order (Hearing on Motion to Vacate NOTICE OF MOTION AND MOTION FOR O...)

5/26/2021: Minute Order - Minute Order (Hearing on Motion to Vacate NOTICE OF MOTION AND MOTION FOR O...)

Declaration Pursuant to 585 CCP in Support of Default Judgment - Declaration Pursuant to 585 CCP in Support of Default Judgment

1/13/2020: Declaration Pursuant to 585 CCP in Support of Default Judgment - Declaration Pursuant to 585 CCP in Support of Default Judgment

Request for Dismissal - Request for Dismissal

1/13/2020: Request for Dismissal - Request for Dismissal

Request for Entry of Default / Judgment - Request for Entry of Default / Judgment

1/13/2020: Request for Entry of Default / Judgment - Request for Entry of Default / Judgment

Proof of Personal Service - Proof of Personal Service

1/13/2020: Proof of Personal Service - Proof of Personal Service

Proof of Personal Service - Proof of Personal Service

1/13/2020: Proof of Personal Service - Proof of Personal Service

Default Judgment - Default Judgment

2/11/2020: Default Judgment - Default Judgment

Abstract of Judgment - Civil and Small Claims - Abstract of Judgment - Civil and Small Claims

2/28/2020: Abstract of Judgment - Civil and Small Claims - Abstract of Judgment - Civil and Small Claims

First Amended Standing Order - First Amended Standing Order

11/14/2019: First Amended Standing Order - First Amended Standing Order

Complaint - Complaint

11/14/2019: Complaint - Complaint

Order on Court Fee Waiver (Superior Court) - Order on Court Fee Waiver (Superior Court)

11/15/2019: Order on Court Fee Waiver (Superior Court) - Order on Court Fee Waiver (Superior Court)

11 More Documents Available

 

Docket Entries

  • 12/17/2021
  • Hearing12/17/2021 at 08:30 AM in Department 25 at 312 North Spring Street, Los Angeles, CA 90012; Non-Jury Trial

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  • 05/26/2021
  • DocketUpdated -- Answer: Status Date changed from 02/07/2020 to 05/26/2021; As To Parties changed from Clifford Johnson (Plaintiff) to Clifford Johnson (Plaintiff)

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  • 05/26/2021
  • DocketNon-Jury Trial scheduled for 12/17/2021 at 08:30 AM in Spring Street Courthouse at Department 25

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  • 05/26/2021
  • DocketUpdated -- On the Complaint filed by Clifford Johnson on 11/14/2019, judgment entered on 02/11/2020 is vacated

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  • 05/26/2021
  • DocketOn the Complaint filed by Clifford Johnson on 11/14/2019, judgment entered on 02/11/2020 as to Joel Portillo is

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  • 05/26/2021
  • DocketOn the Complaint filed by Clifford Johnson on 11/14/2019, judgment entered on 02/11/2020 as to Abelina Portillo is

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  • 05/26/2021
  • DocketOn the Complaint filed by Clifford Johnson on 11/14/2019, Default entered on 01/13/2020, Vacated - .

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  • 05/26/2021
  • DocketMinute Order (Hearing on Motion to Vacate NOTICE OF MOTION AND MOTION FOR O...)

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  • 05/26/2021
  • DocketCertificate of Mailing for (Hearing on Motion to Vacate NOTICE OF MOTION AND MOTION FOR O...) of 05/26/2021; Filed by: Clerk

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  • 05/26/2021
  • DocketHearing on Motion to Vacate NOTICE OF MOTION AND MOTION FOR ORDER VACATING AND SETTING ASIDE DEFAULT (AND DEFAULT JUDGMENT), SUPPORTING DECLARATION, AND MEMORANDUM OF POINTS AND AUTHORITIES AND ORDER scheduled for 05/26/2021 at 10:30 AM in Spring Street Courthouse at Department 25 updated: Result Date to 05/26/2021; Result Type to Held - Motion Granted

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24 More Docket Entries
  • 11/15/2019
  • DocketCase assigned to Hon. James E. Blancarte in Department 94 Stanley Mosk Courthouse

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  • 11/15/2019
  • DocketOrder on Court Fee Waiver (Superior Court); Signed and Filed by: Clerk; As to: Clifford Johnson (Plaintiff)

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  • 11/15/2019
  • DocketNon-Jury Trial scheduled for 05/13/2021 at 08:30 AM in Stanley Mosk Courthouse at Department 94

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  • 11/15/2019
  • DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 11/17/2022 at 08:30 AM in Stanley Mosk Courthouse at Department 94

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  • 11/14/2019
  • DocketNotice of Case Assignment - Limited Civil Case; Filed by: Clerk

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  • 11/14/2019
  • DocketFirst Amended Standing Order; Filed by: Clerk

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  • 11/14/2019
  • DocketCivil Case Cover Sheet; Filed by: Clifford Johnson (Plaintiff); As to: Joel Portillo (Defendant); Abelina Portillo (Defendant)

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  • 11/14/2019
  • DocketSummons on Complaint; Issued and Filed by: Clifford Johnson (Plaintiff); As to: Joel Portillo (Defendant); Abelina Portillo (Defendant)

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  • 11/14/2019
  • DocketRequest to Waive Court Fees; Filed by: Clifford Johnson (Plaintiff)

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  • 11/14/2019
  • DocketComplaint; Filed by: Clifford Johnson (Plaintiff); As to: Joel Portillo (Defendant); Abelina Portillo (Defendant)

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Tentative Rulings

Case Number: 19STLC10547    Hearing Date: May 26, 2021    Dept: 25

PROCEEDINGS: MOTION FOR ORDER VACATING AND SETTING ASIDE DEFAULT AND DEFAULT JUDGMENT

MOVING PARTY: Defendants Joel Portillo and Abelina Portillo

RESP. PARTY: None

MOTION TO SET ASIDE DEFAULT AND DEFAULT JUDGMENT

(CCP § 473(d))

TENTATIVE RULING:

Defendants Joel Portillo and Abelina Portillo’s Motion for Order Vacating and Setting Aside Default and Default Judgment is GRANTED. The default entered on January 13, 2020 and default judgment entered on February 11, 2020 against both Defendants are HEREBY VACATED.

SERVICE:

[X] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[X] Correct Address (CCP §§ 1013, 1013a) OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

OPPOSITION: None filed as of May 24, 2021 [ ] Late [X] None

REPLY: None filed as of May 24, 2021 [ ] Late [X] None

ANALYSIS:

I. Background

On November 14, 2019, Plaintiff Clifford Johnson (“Plaintiff”) filed an action for violation of the Unruh Civil Rights Act against Defendants Joel Portillo (“Joel”) and Abelina Portillo (“Abelina”) (collectively, “Defendants”). Plaintiff filed proofs of service purporting to show that Defendant Abelina was personally served on December 8, 2019 at 957 E. 67th Street, Inglewood, CA 90302. (1/13/20 Abelina Proof of Service.) Plaintiff also filed a proof of service purporting to show Defendant Joel was personally served with the Summons and Complaint on December 9, 2019 at 227 W. Manchester Blvd, Inglewood CA. (1/13/20 Joel Proof of Service.) The proofs of service for both Defendants were executed by Mark Lewis, a registered process server. (1/13/20 Proofs of Service.)

Following Defendants’ failure to respond, default was entered against them on January 13, 2020. An answer was subsequently erroneously accepted by the Court and filed on February 7, 2020. Default having already been entered, a default judgment of $5,205.00 was entered against Defendants on February 11, 2020.

On September 4, 2020, Defendants filed the instant Motion for Order Vacating and Setting Aside Default and Default Judgment (the “Motion”).

Following oral argument from Defendants’ counsel, the Court continued the initial February 3, 2021 hearing. (2/3/21 Minute Order.) Counsel for Defendants was ordered to file a supplemental brief. (Id.) Defendants filed a supplemental brief on March 24, 2021.

At the continued April 5 hearing, the Court found the Motion was untimely under Code of Civil Procedure section 473, subdivision (b), and that the Motion was insufficiently supported under Section 473, subdivision (d). (4/5/21 Minute Order.) The hearing was continued one final time to allow Defendants to submit additional evidence in support of their request. (Id.)

On May 11, 2021, Defendants filed supplemental declarations.

II. Legal Standard & Discussion

A. CCP 473(d)

“A summons is the process by which a court acquires personal jurisdiction over a defendant in a civil action. The form of a summons is prescribed by law, and this form must be substantially observed. [Citation.] Service of a substantially defective summons does not confer jurisdiction over a party [citation] and will not support a default judgment. [Citation.]” (MJS Enterprises, Inc. v. Superior Court (1984) 153 Cal.App.3d 555, 557.) “Thus, a default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void.’ [Citation.]” (Sakaguchi v. Sakaguchi (2009) 173 Cal.App.4th 852, 858, emphasis added.)

A trial court has the inherent power to set aside a judgment void on its face at any time. (Connelly v. Castillo (1987) 190 Cal.App.3d 1583, 1588.) When considering the facial validity of a judgment, the Court may only consider the contents of the judgment roll. (OC Interior Services, LLC v. Nationstar Mortgage, LLC (2017) 7 Cal.App.5th 1318, 1327 (holding that “[t]o prove that the judgment is void, the party challenging the judgment is limited to the judgment roll, i.e., no extrinsic evidence allowed.”).) If the judgment is not void on its face, the time limitations of Code of Civil Procedure section 473.5 apply. (Trackman v. Kenney (2010) 187 Cal.App.4th 175, 180-81; Schekel v. Resnik (1994) 27 Cal.App.4th Supp. 1, 3-4 (“[t]he Rogers court held that the time limitation set forth in Code of Civil Procedure section 473.5 applies by analogy to motions for relief from default judgment valid on its face but otherwise void for improper service” [citing Rogers v. Silverman (1989) 216 Cal.App.3d 1114, 1124.]).)

Defendants argue they filed an answer without any knowledge that a default had been entered against them and before the time within which to file a response to the Complaint had elapsed. (Mot., p. 7:23-26.) Defendants provide their declarations stating that Defendant Joel was personally served on January 6, 2020 and that Defendant Abelina was personally served on January 21, 2020. (Id., Joel Decl., ¶ 3; Abelina Decl., ¶ 3.) Defendants’ counsel also provides copies of proofs of service obtained from the Sheriff’s Department stating that Defendant Joel was personally served on January 6, 2020 at 227 W. Manchester Blvd., Inglewood, CA 90301, and that Defendant Abelina was personally served on January 21, 2020 at 957 E. 67th St., Inglewood, CA 90302. (Mot., Cohen Decl., ¶ 4, Exh. B.) Based on the proofs of service provided by the Sheriff’s Department, Defendant Joel’s deadline to respond to the Complaint would have been February 5, 2020 and Defendant Abelina’s deadline would have been February 20, 2020. (Code Civ. Proc., § 412.20, subd. (a)(3).) Based on these dates, and if Defendants had not previously been served, the default entered on January 13, 2020 would be void as premature.

In their supplemental declarations, Defendant Joel attests he was not served or otherwise received notice of this action before January 6, 2020. (5/11/21 Joel Decl., ¶ 2.) Similarly, Defendant Abelina attests she was not served with this action or otherwise received notice of this lawsuit before January 21, 2021. (5/11/21 Abelina Decl., ¶ 2.) Notably, Plaintiff has not filed an opposition or bothered to appear at the previous two hearings to explain the inconsistency with the proofs of service.

Thus, because Defendants have demonstrated they were served only on January 6 and 21, 2020, the default entered on January 13, 2020 was premature and is therefore void. As the default judgment was based on a void default, it is also void.

Defendant’s Motion is GRANTED.

III. Conclusion & Order

For the foregoing reasons, Defendants Joel Portillo and Abelina Portillo’s Motion for Order Vacating and Setting Aside Default and Default Judgment is GRANTED.

Moving parties are ordered to give notice.

Case Number: 19STLC10547    Hearing Date: April 5, 2021    Dept: 25

HEARING DATE: Mon., April 5, 2021 JUDGE /DEPT: Blancarte/25

CASE NAME: Johnson v. Portillo, et al. COMP. FILED: 11-14-19

CASE NUMBER: 19STLC10547 DEFAULT: 01-13-20

NOTICE: OK DEF. JUDGMENT: 02-07-20

PROCEEDINGS: MOTION FOR ORDER VACATING AND SETTING ASIDE DEFAULT AND DEFAULT JUDGMENT

MOVING PARTY: Defendants Joel Portillo and Abelina Portillo

RESP. PARTY: None

MOTION TO SET ASIDE DEFAULT AND DEFAULT JUDGMENT

(CCP § 473(b))

TENTATIVE RULING:

Defendants Joel Portillo and Abelina Portillo’s Motion for Order Vacating and Setting Aside Default and Default Judgment is CONTINUED TO MAY 26, 2021 at 10:30 a.m. in Department 25 at the SPRING STREET COURTHOUSE. At least 16 court days before the next scheduled hearing, Defendants must file and serve supplemental papers as requested herein. Failure to do so may result in the Motion being placed off calendar or denied.

SERVICE:

[X] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[X] Correct Address (CCP §§ 1013, 1013a) OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

OPPOSITION: None filed as of April 1, 2021 [ ] Late [X] None

REPLY: None filed as of April 1, 2021 [ ] Late [X] None

ANALYSIS:

  1. Background

On November 14, 2019, Plaintiff Clifford Johnson (“Plaintiff”) filed an action for violation of the Unruh Civil Rights Act against Defendants Joel Portillo and Abelina Portillo (collectively, “Defendants”). Plaintiff filed proofs of service demonstrating that Defendant Abelina was personally served on December 8, 2019 at 957 E. 67th Street, Inglewood, CA 90302. (1/13/20 Abelina Proof of Service.) Plaintiff also filed a proof of service demonstrating Defendant Joel was personally served with the Summons and Complaint on December 9, 2019 at 227 W. Manchester Blvd, Inglewood CA. (1/13/20 Joel Proof of Service.) Service for both Defendants was effectuated by Mark Lewis, a registered process server. (1/13/20 Proofs of Service.)

Following Defendants’ failure to respond, default was entered against them on January 13, 2020. An Answer was subsequently filed on February 7, 2020. Default having already been entered, a default judgment of $5,205.00 was entered against Defendants on February 11, 2020.

On September 4, 2020, Defendants filed the instant Motion for Order Vacating and Setting Aside Default and Default Judgment (the “Motion”).

Following oral argument from Defendants’ counsel, the Court continued the initial February 3, 2021 hearing. (2/3/21 Minute Order.) Counsel for Defendants was ordered to file a supplemental brief citing any authority that warrants the granting of the instant Motion at least ten (10) days before the next hearing date. (Id.)

Defendants filed a supplemental brief on March 24, 2021. No opposition has been filed.

  1. Legal Standard & Discussion

A. CCP 473(b)

Defendants’ Notice of Motion states the Motion is “made on the grounds that the default judgment was taken against Defendants through his/her surprise, excusable neglect, and fraud.” (Notice of Mot., p. 2:3-5.)

Under Code of Civil Procedure section 473, subdivision (b), an application for relief must be made no more than six months after entry of the judgment, dismissal, order, or other proceeding 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.)

This Motion was filed more than six months after both the default and the default judgment were entered. Thus, Defendant’s Motion under section 473, subdivision (b), is untimely.

B. CCP 473(d)

“A summons is the process by which a court acquires personal jurisdiction over a defendant in a civil action. The form of a summons is prescribed by law, and this form must be substantially observed. [Citation.] Service of a substantially defective summons does not confer jurisdiction over a party [citation] and will not support a default judgment. [Citation.]” (MJS Enterprises, Inc. v. Superior Court (1984) 153 Cal.App.3d 555, 557.) “Thus, a default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void.’ [Citation.]” (Sakaguchi v. Sakaguchi (2009) 173 Cal.App.4th 852, 858, emphasis added.)

A trial court has the inherent power to set aside a judgment void on its face at any time. (Connelly v. Castillo (1987) 190 Cal.App.3d 1583, 1588.) When considering the facial validity of ta judgment, the Court may only consider the contents of the judgment roll. (OC Interior Services, LLC v. Nationstar Mortgage, LLC (2017) 7 Cal.App.5th 1318, 1327 (holding that “[t]o prove that the judgment is void, the party challenging the judgment is limited to the judgment roll, i.e., no extrinsic evidence allowed.”).) If the judgment is not void on its face, the time limitations of Code of Civil Procedure section 473.5 apply. (Trackman v. Kenney (2010) 187 Cal.App.4th 175, 180-81; Schekel v. Resnik (1994) 27 Cal.App.4th Supp. 1, 3-4 (“[t]he Rogers court held that the time limitation set forth in Code of Civil Procedure section 473.5 applies by analogy to motions for relief from default judgment valid on its face but otherwise void for improper service” [citing Rogers v. Silverman (1989) 216 Cal.App.3d 1114, 1124.]).)

Defendants argue they filed an Answer without any knowledge that a default had been entered against them and before the time within which to file a response to the Complaint had elapsed. (Mot., p. 7:23-26.) Defendants provide their declarations stating that Defendant Joel was personally served on January 6, 2020 and that Defendant Abelina was personally served on January 21, 2020. (Id., Joel Decl., ¶ 3; Abelina Decl., ¶ 3.) Defendants’ counsel also provides copies of proofs of service obtained from the Sheriff’s Department stating that Defendant Joel was personally served on January 6, 2020 at 227 W. Manchester Blvd., Inglewood, CA 90301, and that Defendant Abelina was personally served on January 21, 2020 at 957 E. 67th St., Inglewood, CA 90302. (Mot., Cohen Decl., ¶ 4, Exh. B.) Based on the proofs of service provided by the Sheriff’s Department, Defendant Joel’s deadline to respond to the Complaint would have been February 5, 2020 and Defendant Abelina’s deadline would have been February 20, 2020. (Code Civ. Proc., § 412.20, subd. (a)(3).) Based on these dates, the default entered on January 13, 2020 would be void as premature.

However, Defendants do not address or mention the proofs of service filed on January 13, 2020 demonstrating they were personally served with the Summons and Complaint by a registered process server. (1/13/20 Proofs of Service.) The proofs of service are valid on their face. Thus, the judgment roll does not demonstrate that the judgment entered is void on its face. Although strange that Defendants were purportedly served twice, i.e., once on December 8 and 9, 2019 and again on January 6 and 21, 2020, because Defendants have not denied first being served on December 8 and 9, 2019, the Court cannot find that they were deprived of the opportunity to respond or that the default and subsequent default judgment are void.

In the interest of resolving this matter on the merits, however, Defendants are permitted to submit a supplemental declaration demonstrating they were not served on December 8 and 9, 2019 as stated in Plaintiff’s proofs of service.

  1. Conclusion & Order

For the foregoing reasons, Defendants Joel Portillo and Abelina Portillo’s Motion for Order Vacating and Setting Aside Default and Default Judgment is CONTINUED TO MAY 26, 2021 at 10:30 a.m. in Department 25 at the SPRING STREET COURTHOUSE. At least 16 court days before the next scheduled hearing, Defendants must file and serve supplemental papers as requested herein. Failure to do so may result in the Motion being placed off calendar or denied.

Moving party is ordered to give notice.

Case Number: 19STLC10547    Hearing Date: February 03, 2021    Dept: 25

HEARING DATE: Wed., February 3, 2021 JUDGE /DEPT: Blancarte/25

CASE NAME: Johnson v. Portillo, et al. COMP. FILED: 11-14-19

CASE NUMBER: 19STLC10547 DEFAULT: 01-13-20

NOTICE: OK DEF. JUDGMENT: 02-07-20

PROCEEDINGS: MOTION FOR ORDER VACATING AND SETTING ASIDE DEFAULT AND DEFAULT JUDGMENT

MOVING PARTY: Defendants Joel Portillo and Abelina Portillo

RESP. PARTY: None

MOTION TO SET ASIDE DEFAULT AND DEFAULT JUDGMENT

(CCP § 473(b))

TENTATIVE RULING:

Defendants Joel Portillo and Abelina Portillo’s Motion for Order Vacating and Setting Aside Default and Default Judgment is DENIED.

SERVICE:

[X] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[X] Correct Address (CCP §§ 1013, 1013a) OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

OPPOSITION: None filed as of February 1, 2021 [ ] Late [X] None

REPLY: None filed as of February 1, 2021 [ ] Late [X] None

ANALYSIS:

  1. Background

On November 14, 2019, Plaintiff Clifford Johnson (“Plaintiff”) filed an action for violation of the Unruh Civil Rights Act against Defendants Joel Portillo and Abelina Portillo (collectively, “Defendants”).

Following Defendants’ failure to respond, default was entered against them on January 13, 2020. An Answer was subsequently filed on February 7, 2020. Default having already been entered, a default judgment of $5,205.00 was entered against Defendants on February 11, 2020.

On September 4, 2020, Defendants filed the instant Motion for Order Vacating and Setting Aside Default and Default Judgment (the “Motion”). To date, no opposition has been filed.

  1. Legal Standard & Discussion

Defendants seek relief pursuant to Code of Civil Procedure section 473, subdivision (b). (Mot., p. 2:3-4, p. 7:9-16.) Under this statute, an application for relief must be made no more than six months after entry of the judgment, dismissal, order, or other proceeding 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.)

Defendant’s Motion is untimely. Because the default judgment was entered on February 11, 2020, any motion to vacate should under Section 473, subdivision (b), should have been filed and served no later than August 11, 2020. As this Motion was not filed until September 4, it is untimely.

Thus, the Motion is DENIED.

  1. Conclusion & Order

For the foregoing reasons, Defendants Joel Portillo and Abelina Portillo’s Motion for Order Vacating and Setting Aside Default and Default Judgment is DENIED.

Moving party is ordered to give notice.