COMMONWEALTH LAND TITLE INSURANCE VS GLENDY M GARCIA, ET AL

Tentative Rulings

Case Number: VC064219    Hearing Date: July 14, 2020    Dept: SEC

COMMONWEALTH LAND TITLE INSURANCE COMPANY v. MENDOZA, et al.

CASE NO.:  VC064219

HEARING:  7/14/20

[Remote appearances are encouraged and will be given priority.]

#3

TENTATIVE ORDER

Defendant Marina Frias (erroneously sued as Marina Mendoza)’s motion to vacate judgment is GRANTED.

Moving Party to give NOTICE.

Defendant Marina Frias (erroneously sued as Marina Mendoza) moves to vacate judgment pursuant to the court’s equitable powers.

Where a motion to vacate is made more than six months after entry of default, the motion is not directed to the court's statutory power under Cal. Civ. Proc. Code § 473 to grant relief for mistake or excusable neglect, but rather is directed to the court's inherent equity power under which it may grant relief from a default judgment where there has been extrinsic fraud or mistake…. Three elements must be satisfied to set aside a judgment based upon extrinsic mistake: first the defaulted party must show that it has a meritorious case; secondly it must articulate a satisfactory excuse for not presenting a defense to the original action; and lastly it must demonstrate that it was diligent in seeking to set aside the default once it had been discovered. This rule applies equally where the motion is to vacate an order of dismissal. (Aldrich v. San Fernando Valley Lumber Co. (1985) 170 Cal.App.3d 725, 735-737.) If a Defendant proceeds by noticed motion in the main action, his or her moving papers should contain a copy of a proposed answer showing a valid defense, and declarations showing facts to support such defense. (Shields v. Siegel (1966) 246 Cal.App.2d 334, 337.)

Default judgment was entered against Defendant Marina Mendoza on 3/23/17.

Defendant declares that she had no knowledge of the action because the proof of service shows that the documents were left at the officer of her former employer, more than two years after she stopped worked there. (Frias Decl., ¶ 7.) The court finds that Defendant has articulated a satisfactory excuse for not presenting a defense to the original action.

Further, Defendant attests that she did not participate in any crimes with the other Defendants, and did not receive stolen money from the crimes. (Frias Decl., ¶ 21.) The court finds Plaintiff has demonstrated a meritorious defense.

Finally, Defendant declares that once she became aware of the lawsuit in June 2019, she undertook to find advice of a paralegal and hired a lawyer to resolve the default against her. (Frias Decl., ¶ 23.)

In opposition, Plaintiff contends that there is a lack of diligence because the motion was filed in February 2020, eight months after Defendant’s discovery of the default.

However, the court finds that Plaintiff exercised reasonable diligence in her efforts to set aside the order. Once she learned of this action, she called and left a message for opposing counsel, but her call was never returned. (Frias Decl., ¶ 12.) In August 2019, she left another message for opposing counsel, but her call was never returned. (Id. at ¶ 13.) In October, after she discovered her the writ against her bank account, she engaged a document preparation company for help. (Id. at ¶ 17.) After the claim of exemption hearing, she hired current counsel to set aside the default. The court finds Plaintiff has demonstrated diligence.

Justice favors resolution of this matter on the merits.

Accordingly, the motion is GRANTED.

Case Number: VC064219    Hearing Date: March 24, 2020    Dept: SEC

COMMONWEALTH LAND TITLE INSURANCE v. GARCIA, et al.

CASE NO.:  VC064219

HEARING:  3/24/20

#8

TENTATIVE ORDER

Due to the directives, from both the Governor and the Presiding Judge, Defendant Frias’s motion to vacate judgment is CONTINUED to July 14, 2020 in Dept. SEC at 1:30 PM.