This case was last updated from Los Angeles County Superior Courts on 11/30/2021 at 06:48:36 (UTC).

INTERINSURANCE EXCHANGE OF THE AUTOMOBILE CLUB, AN INTERINSURANCE EXCHANGE VS FELIPE SANTANA PENALOZA, ET AL.

Case Summary

On 08/13/2019 INTERINSURANCE EXCHANGE OF THE AUTOMOBILE CLUB, AN INTERINSURANCE EXCHANGE filed a Personal Injury - Motor Vehicle lawsuit against FELIPE SANTANA PENALOZA. 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 Disposed - Judgment Entered.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******7522

  • Filing Date:

    08/13/2019

  • Case Status:

    Disposed - Judgment Entered

  • Case Type:

    Personal Injury - Motor Vehicle

  • County, State:

    Los Angeles, California

Judge Details

Judge

JAMES E. BLANCARTE

 

Party Details

Plaintiff

INTERINSURANCE EXCHANGE OF THE AUTOMOBILE CLUB AN INTERINSURANCE EXCHANGE

Defendants

PENALOZA FELIPE SANTANA

UNITED PACIFIC WASTE

Attorney/Law Firm Details

Plaintiff Attorneys

HORN STEVEN J.

AGUIRRE JAMES

 

Court Documents

Notice (name extension) - Notice Court Order RE: Hearing on Motion to Set Aside/Vacate Default

10/4/2021: Notice (name extension) - Notice Court Order RE: Hearing on Motion to Set Aside/Vacate Default

Minute Order - Minute Order (Hearing on Motion to Set Aside/Vacate Default and Default Jud...)

10/13/2021: Minute Order - Minute Order (Hearing on Motion to Set Aside/Vacate Default and Default Jud...)

Opposition (name extension) - Opposition of motion to set aside default judgment

9/7/2021: Opposition (name extension) - Opposition of motion to set aside default judgment

Minute Order - Minute Order (Court Order Re: Hearing on Motion to Set Aside/Vacate Default...)

9/13/2021: Minute Order - Minute Order (Court Order Re: Hearing on Motion to Set Aside/Vacate Default...)

Certificate of Mailing for - Certificate of Mailing for (Court Order Re: Hearing on Motion to Set Aside/Vacate Default...) of 09/13/2021

9/13/2021: Certificate of Mailing for - Certificate of Mailing for (Court Order Re: Hearing on Motion to Set Aside/Vacate Default...) of 09/13/2021

Opposition (name extension) - Opposition to Motion to Vacate

8/20/2021: Opposition (name extension) - Opposition to Motion to Vacate

Motion to Set Aside/Vacate Default and / or Default Judgment - Motion to Set Aside/Vacate Default and / or Default Judgment Notice of Motion and Motion to Vacate Default Judgment

7/29/2021: Motion to Set Aside/Vacate Default and / or Default Judgment - Motion to Set Aside/Vacate Default and / or Default Judgment Notice of Motion and Motion to Vacate Default Judgment

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

7/12/2021: Order on Court Fee Waiver (Superior Court) - Order on Court Fee Waiver (Superior Court)

Notice of Rejection - Pleadings - Notice of Rejection - Pleadings

5/21/2021: Notice of Rejection - Pleadings - Notice of Rejection - Pleadings

Association of Attorney - Association of Attorney

4/9/2021: Association of Attorney - Association of Attorney

Certificate of Facts re: Unsatisfied Judgment (plus Certified Judgment) - Certificate of Facts re: Unsatisfied Judgment (plus Certified Judgment)

4/14/2021: Certificate of Facts re: Unsatisfied Judgment (plus Certified Judgment) - Certificate of Facts re: Unsatisfied Judgment (plus Certified Judgment)

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

4/14/2021: Abstract of Judgment - Civil and Small Claims - Abstract of Judgment - Civil and Small Claims

Declaration (name extension) - Declaration Declaration of James H. Aguirre...Several

11/19/2020: Declaration (name extension) - Declaration Declaration of James H. Aguirre...Several

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

11/19/2020: Request for Entry of Default / Judgment - Request for Entry of Default / Judgment

Statement of Damages (Personal Injury or Wrongful Death) - Statement of Damages (Personal Injury or Wrongful Death)

11/19/2020: Statement of Damages (Personal Injury or Wrongful Death) - Statement of Damages (Personal Injury or Wrongful Death)

Request for Dismissal - Request for Dismissal

11/19/2020: Request for Dismissal - Request for Dismissal

Statement of Damages (Personal Injury or Wrongful Death) - Statement of Damages (Personal Injury or Wrongful Death)

11/19/2020: Statement of Damages (Personal Injury or Wrongful Death) - Statement of Damages (Personal Injury or Wrongful Death)

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

11/19/2020: Declaration Pursuant to 585 CCP in Support of Default Judgment - Declaration Pursuant to 585 CCP in Support of Default Judgment

22 More Documents Available

 

Docket Entries

  • 10/13/2021
  • DocketMinute Order (Hearing on Motion to Set Aside/Vacate Default and Default Jud...)

    Read MoreRead Less
  • 10/13/2021
  • DocketHearing on Motion to Set Aside/Vacate Default and Default Judgment (CCP 473.5) scheduled for 10/13/2021 at 10:30 AM in Spring Street Courthouse at Department 25 updated: Result Date to 10/13/2021; Result Type to Held - Motion Denied

    Read MoreRead Less
  • 10/04/2021
  • DocketNotice Court Order RE: Hearing on Motion to Set Aside/Vacate Default; Filed by: Felipe Santana Penaloza (Defendant)

    Read MoreRead Less
  • 09/13/2021
  • DocketCase reassigned to Spring Street Courthouse in Department 25 - Hon. Katherine Chilton; Reason: Inventory Transfer

    Read MoreRead Less
  • 09/13/2021
  • DocketHearing on Motion to Set Aside/Vacate Default and Default Judgment (CCP 473.5) scheduled for 10/13/2021 at 10:30 AM in Spring Street Courthouse at Department 25

    Read MoreRead Less
  • 09/13/2021
  • DocketMinute Order (Court Order Re: Hearing on Motion to Set Aside/Vacate Default...)

    Read MoreRead Less
  • 09/13/2021
  • DocketCertificate of Mailing for (Court Order Re: Hearing on Motion to Set Aside/Vacate Default...) of 09/13/2021; Filed by: Clerk

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  • 09/13/2021
  • DocketAddress for Felipe Santana Penaloza (Defendant) updated

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  • 09/13/2021
  • DocketAddress for Felipe Santana Penaloza (Defendant) updated

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  • 09/07/2021
  • DocketOpposition of motion to set aside default judgment; Filed by: Felipe Santana Penaloza (Defendant)

    Read MoreRead Less
33 More Docket Entries
  • 02/28/2020
  • DocketProof of Service by Substituted Service; Filed by: Interinsurance Exchange of the Automobile Club, an interinsurance exchange (Plaintiff); As to: United Pacific Waste (Defendant); Proof of Mailing Date: 11/08/2019; Service Cost: 353.00; Service Cost Waived: No

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  • 01/29/2020
  • DocketProof of Service by Substituted Service; Filed by: Interinsurance Exchange of the Automobile Club, an interinsurance exchange (Plaintiff); As to: Felipe Santana Penaloza (Defendant); Proof of Mailing Date: 01/24/2020; Service Cost: 331.00; Service Cost Waived: No

    Read MoreRead Less
  • 08/14/2019
  • DocketNon-Jury Trial scheduled for 02/09/2021 at 08:30 AM in Stanley Mosk Courthouse at Department 94

    Read MoreRead Less
  • 08/14/2019
  • DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 08/16/2022 at 08:30 AM in Stanley Mosk Courthouse at Department 94

    Read MoreRead Less
  • 08/14/2019
  • DocketCase assigned to Hon. James E. Blancarte in Department 94 Stanley Mosk Courthouse

    Read MoreRead Less
  • 08/13/2019
  • DocketComplaint; Filed by: Interinsurance Exchange of the Automobile Club, an interinsurance exchange (Plaintiff); As to: Felipe Santana Penaloza (Defendant); United Pacific Waste (Defendant)

    Read MoreRead Less
  • 08/13/2019
  • DocketCivil Case Cover Sheet; Filed by: Interinsurance Exchange of the Automobile Club, an interinsurance exchange (Plaintiff); As to: Felipe Santana Penaloza (Defendant); United Pacific Waste (Defendant)

    Read MoreRead Less
  • 08/13/2019
  • DocketSummons on Complaint; Issued and Filed by: Interinsurance Exchange of the Automobile Club, an interinsurance exchange (Plaintiff); As to: Felipe Santana Penaloza (Defendant); United Pacific Waste (Defendant)

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  • 08/13/2019
  • DocketNotice of Case Assignment - Limited Civil Case; Filed by: Clerk

    Read MoreRead Less
  • 08/13/2019
  • DocketFirst Amended Standing Order; Filed by: Clerk

    Read MoreRead Less

Tentative Rulings

b'

Case Number: 19STLC07522 Hearing Date: October 13, 2021 Dept: 25

PROCEEDINGS: MOTION TO VACATE DEFAULT\r\nJUDGMENT

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MOVING PARTY: Defendant Felipe Santana\r\nPenaloza, in pro per

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RESP. PARTY: Plaintiff Interinsurance Exchange of the Automobile Club

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MOTION TO SET ASIDE/VACATE DEFAULT AND\r\nDEFAULT JUDGMENT

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(CCP §§ 473(d); 473.5)

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TENTATIVE RULING:

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Defendant\r\nFelipe Santana Penaloza’s Motion to Vacate Default Judgment is DENIED.

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SERVICE:

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[X] Proof of Service Timely Filed (CRC,\r\nrule 3.1300) OK

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

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[X] 16/21 Court Days Lapsed (CCP §§ 12c,\r\n1005(b)) OK

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OPPOSITION: Filed\r\non August 20, 2021 [ ] Late [ ]\r\nNone

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REPLY: Filed\r\non September 7, 2021 [ ] Late [ ]\r\nNone

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ANALYSIS:

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I. \r\nBackground

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On August 18, 2019, Plaintiff Interinsurance Exchange of\r\nthe Automobile Club (“Plaintiff”) filed an action against Defendants Felipe\r\nSantana Penaloza (“Penaloza”) and United Pacific West (“United”) seeking\r\ndamages of $7,597.43 in subrogation.

\r\n\r\n

\r\n\r\n

Following Defendants’ failure to respond, default was\r\nentered against Defendant Penaloza on March 19, 2020 and against Defendant\r\nUnited on June 30, 2020. A default judgment was entered against both Defendants\r\non December 8, 2020.

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Defendant Penaloza filed the instant Motion to Vacate\r\nDefault Judgment (the “Motion”) on July 29, 2021. Plaintiff filed an opposition\r\non August 20 and Defendant Penaloza filed a reply brief on September 7.

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II. \r\nLegal Standard & Discussion

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A. Lack of Proper Notice – CCP §\r\n473.5

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Code of Civil Procedure section\r\n473.5 provides:

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“(a) When service of a summons\r\nhas not resulted in actual notice to a party in time to defend the action and a\r\ndefault or default judgment has been entered against him or her in the action,\r\nhe or she may serve and file a notice of motion to set aside the default or\r\ndefault judgment and for leave to defend the action. The notice of motion shall\r\nbe served and filed within a reasonable time, but in no event\r\nexceeding the earlier of: (i) two years after entry of\r\na default judgment against him or her; or (ii) 180 days after service on\r\nhim or her of a written notice that the default or default judgment has been\r\nentered.

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(b) A notice of motion to set\r\naside a default or default judgment and for leave to defend the action shall\r\ndesignate as the time for making the motion a date prescribed by subdivision\r\n(b) of Section 1005, and it shall be accompanied by an affidavit showing under\r\noath that the party’s lack of actual notice in time to defend the action was\r\nnot caused by his or her avoidance of service or inexcusable neglect. The party\r\nshall serve and file with the notice a copy of the answer, motion, or other\r\npleading proposed to be filed in the action.

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(c) Upon a finding by the\r\ncourt that the motion was made within the period permitted by subdivision (a)\r\nand that his or her lack of actual notice in time to defend the action was not\r\ncaused by his or her avoidance of service or inexcusable neglect, it may set\r\naside the default or default judgment on whatever terms as may be just and\r\nallow the party to defend the action.”

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(Emphasis added.)

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Defendant first argues he is\r\nentitled to set aside the default entered against him under Code of Civil\r\nProcedure section 473.5 because he had no notice of this action. (Mot., p. 5.)

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Plaintiff filed a proof of service\r\non January 12, 2020 showing that Defendant Penaloza was substitute served by a registered process server at 6028\r\nStafford, Apt. G, Huntington Park, CA 90255 (the “Stafford Address”) on January\r\n12, 2020 by leaving a copy of the Documents with “Carmen Velasquez, co-occupant”.\r\n(1/29/20 Proof of Service.) The proof of service also includes a declaration of\r\ndue diligence demonstrating the process server attempted to personally serve\r\nDefendant Penaloza on three separate occasions before substitute serving him as\r\nwell as a declaration of mailing demonstrating the Summons and Complaint were\r\nmailed to the Stafford Address on January 24, 2020. (Id.)

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“An individual may be served by\r\nsubstitute service only after a good faith effort at personal service has first\r\nbeen made: the burden is on the plaintiff to show that the summons and\r\ncomplaint ‘cannot with reasonable diligence be personally delivered’ to\r\ndefendants. [Citations.] Two or three attempts to personally serve a defendant\r\nat a proper place ordinarily\r\nqualifies as ‘reasonable diligence.’” (American\r\nExpress Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 389.) If the\r\nsummons and complaint cannot be personally delivered with reasonable diligence,\r\nthen a copy may be served at the person’s “dwelling house, usual place of\r\nabode, usual place of business, or usual mailing address other than a United\r\nStates Postal Service post office box, in the presence of a competent member of\r\nthe household or a person apparently in charge of his or her office, place of\r\nbusiness, or usual mailing address other than a United States Postal Service\r\npost office box…who shall be informed of the contents thereof and by thereafter\r\nmailing a copy of the summons and complaint by first class mail, postage\r\nprepaid, to the person to be served…” (Code Civ. Proc., § 415.20, subd. (b).)

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The proof of service Plaintiff\r\nfiled satisfies the requirements of Code of Civil Procedure section 415.20 and\r\nis valid on its face. Further, because service was effectuated by a registered\r\nprocess server, Plaintiff is entitled to a presumption of valid service. (American Express Centurion Bank v.\r\nZara (2011) 199 Cal.App.4th\r\n383, 390; see also Evid. Code § 647.) This requires Defendant Penaloza to\r\nsubmit sufficient evidence to overcome the presumption of valid service.

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The only evidence Defendant Penaloza included in his\r\nmoving papers was his self-serving declaration stating, in pertinent part, the\r\nfollowing:

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“I never received the actual Summons and Complaint that\r\nwas filed against me. Nor was I ever served the documents personally. I never\r\nattempted to avoid service, nor did I attempt to not receive any of the\r\ndocuments. If I would have received the documents, I would immediately\r\nresponded to the documents and prepared a response.”

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(Mot., Penaloza Decl., ¶ 3.)

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Defendant Penaloza’s declaration is insufficient. He does\r\nnot explain or offer a possible reason as to why he did not receive the\r\ndocuments, such as service at an incorrect address. Not only were the Summons\r\nand Complaint mailed to Defendant Penaloza at the Stafford Address, so were the\r\nrequest for entry of default judgment on November 17, a copy of the judgment on\r\nDecember 29, 2020, and a copy notice of association of counsel on April 7,\r\n2021. (11/19/20 Request for Court Judgment; 12/29/2020 Proof of Service; 4/7/21\r\nNotice of Association of Attorney.)

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Furthermore, Defendant Penaloza argues the first time he\r\ndiscovered this action was when he received notice from the DMV that his\r\nlicense was suspended on May 5, 2021. (Mot., Penaloza Decl., p. 3.) Defendant\r\nPenaloza does not provide a copy of the DMV notice. In opposition, Plaintiff\r\ndoes. (Oppo., Horn Decl., ¶ 3, Exh. 3.) The Order of Suspension from the\r\nCalifornia DMV, dated May 5, 2021, demonstrates it was mailed to Defendant\r\nPenaloza at the Stafford Address. (Id.)

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Lastly, the address on Defendant Penaloza’s moving papers\r\nis the same Stafford Address at which Plaintiff substitute served the Summons\r\nand Complaint, and at which the Summons and Complaint, the request for entry of\r\ndefault judgment, notice of entry of judgment, and notice of association of\r\ncounsel were mailed, and at which the DMV mailed the Order of Suspension. Indeed,\r\nit is suspect that Defendant Penaloza did not receive any of the mailed\r\ndocuments that relate to this action, but did receive the Order of Suspension\r\nfrom the DMV.

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The Court notes that because Plaintiff filed a proof of\r\nservice demonstrating Defendant Penaloza was served with a copy of the entry of\r\njudgment on December 29, 2020, this Motion should have been filed no later than\r\n180 days later, that is, June 27, 2021. (Code Civ. Proc., §473.5, subd. (a).) Because\r\nit was not filed until July 29, 2021, Defendant Penaloza’s request for relief\r\nunder this Section is untimely. Further, it is not accompanied by a copy of his\r\nproposed responsive pleading as required by Code of Civil Procedure section\r\n473.5, subdivision (b).

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In his reply brief, Defendant Penaloza argues that he was\r\nnot properly served because “Carmen Velasquez” does not reside with him nor\r\ndoes he know who that person is. (Reply, Penaloza Decl., p. 1.) He further\r\nstates that the only person that resides with him is his wife, Amparo Alvarado\r\nSantana. (Id.) He also states that the only letters he received stated\r\nhe needed to “pay for the accident” or he would be sent to collections and his\r\nlicense would be suspended. (Id. at p. 2.)

\r\n\r\n

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A trial court has the inherent power to set aside a\r\njudgment void on its face at any time. (Connelly\r\nv. Castillo (1987) 190 Cal.App.3d 1583, 1588.) When considering the facial\r\nvalidity of a judgment, the Court may only consider the contents of the\r\njudgment roll. (OC Interior Services, LLC\r\nv. Nationstar Mortgage, LLC (2017) 7 Cal.App.5th 1318, 1327 (holding that\r\n“[t]o prove that the judgment is void, the party challenging the judgment is\r\nlimited to the judgment roll, i.e., no extrinsic evidence allowed.”).) If the\r\njudgment is not void on its face, the time limitations of Code of Civil\r\nProcedure section 473.5 apply. (Trackman\r\nv. Kenney (2010) 187 Cal.App.4th 175, 180-81; Schekel v. Resnik (1994) 27 Cal.App.4th Supp. 1, 3-4 (“[t]he Rogers\r\ncourt held that the time limitation set forth in Code of Civil Procedure\r\nsection 473.5 applies by analogy to motions for relief from default judgment\r\nvalid on its face but otherwise void for improper service” [citing Rogers v. Silverman (1989) 216 Cal.App.3d\r\n1114, 1124.]).)

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As previously mentioned, Defendant Penaloza’s request is\r\nnot supported by any documentary evidence. The proof of service is also valid\r\non its face. In addition, the relief granted to Plaintiff, exclusive of\r\ninterest and costs, does not exceed the amount demanded in the Complaint. (Code\r\nCiv. Proc., § 580, subd. (a).) Thus, the judgment is valid on its face.

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Because the judgment is valid on its face, the time\r\nlimitations of Section 473.5 apply. As a result, the request for relief from\r\ndefault and default judgment on this basis is also untimely.

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In conclusion, Defendant has not demonstrated he is\r\nentitled to relief from the default or default judgment. Accordingly, the\r\nMotion is DENIED.

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III. \r\nConclusion & Order

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For the\r\nforegoing reasons, Defendant Felipe Santana Penaloza’s Motion to Vacate Default\r\nJudgment is DENIED.

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Moving party is\r\nordered to give notice.

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