JORGE RAMIREZ VS JORGE DELGADO, ET AL

Tentative Rulings

Case Number: VC064222    Hearing Date: December 02, 2020    Dept: C

RAMIREZ v. DELGADO, et al.

CASE NO.: VC064222

HEARING: 12/2/20 @ 1:30 PM

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

#5

TENTATIVE ORDER

I. Defendant Delgado’s motion to vacate default judgment is DENIED.

II. Judgment Creditor Judgment Recovery Assistance, LLC’s motion to attach spousal wages is GRANTED.

Judgment Creditor to give NOTICE.

I. Set Aside Default

The original Complaint in this action was filed on 8/20/14.

On 2/17/15, default was entered against Defendant Delgado.

On 2/20/15, Defendant filed an Answer. Because Defendant’s Answer was filed after entry of default was taken, the Answer is untimely and void. The court’s Minute Order dated 2/27/15 provides that “The answer filed by Defendant Jose Delgado was filed after the default was entered. The default remains in place.” Plaintiff’s Notice filed on 3/2/15 also provides, “The Court confirmed the Default of Defendant Jorge Delgado was entered February 17, 2015 before his Answer of February 20, 2015, and therefore, the Court deemed Delgado’s Answer untimely, void, and stricken.”

On 5/27/15, the court denied Defendant Delgado’s motion to quash service, and granted Defendant’s motion to set aside default, ordering Delgado to file a responsive pleading within 20 days.

Defendant FAILED to file a responsive pleading by the deadline set by the court.

Thereafter, default was entered against Delgado on 7/6/15, and default judgment was entered on 9/9/15.

In the instant motion, Defendant contends that the default judgment was void pursuant to CCP § 473(d) because Defendant was not properly served. However, substantial compliance with the service of summons statutes is

sufficient to defeat a motion under CCP 473(d). (Gibble v. Car–Lene Research, Inc. (1998) 67 CA4th 295, 313; Ellard v. Conway (2001) 94 CA4th 540, 544 —court may set aside default judgment valid on its face, but void as a matter of law due to improper service.)

As determined by the court on 5/27/15, and again here, the court finds that Plaintiff has substantially complied with the service of summons statutes.

Further, Defendant made a general appearance by requesting the court to set aside the initial default. The court granted the request, and therefore, the court has jurisdiction over Defendant, and Defendant’s argument based on improper service is deemed waived.

Defendant alternatively argues that the court “should have acknowledged and deemed Delgado’s answer filed as of the date that it vacated the entry of default.” (Motion, 5:24-25.)

However, the cases cited by Defendant are distinguishable. In County of Los Angeles v. Lewis, the answer was filed two days before the motion to set aside default was served, and the motion stated that the proposed answer was “attached hereto.” The court held that the answer filed two days earlier was “in substance and effect” deemed to accompany the notice. Here, Defendant’s initial motion to set aside the default did not even address any Answer “attached hereto,” and Defendant’s untimely answer was filed two months before the motion. In County of Stanislaus v. Johnson, the court did not make any specific order relating to Defendant’s Answer. Here, this court specifically deemed Delgado’s Answer was untimely because “The answer filed by Defendant Jose Delgado was filed after the default was entered. The default remains in place.” On 5/27/15, this court further ordered Delgado to file a responsive pleading within 20 days. These facts are distinguishable from the authorities cited by Defendant.

Finally, although Defendant cited extrinsic fraud or mistake, Defendant failed to substantiate any 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.)

Defendant failed to present any evidence supporting a meritorious defense, failed to articulate a satisfactory excuse for not presenting the defense sooner, and was not diligent in seeking to set aside the default. Defendant waited almost five years to bring the instant motion.

Accordingly, the motion is DENIED.

II. Attach Spousal Wages

Judgment Creditor Judgment Recovery Assistance, LLC moves to attach spousal wages.

Judgment Creditor obtained a judgment against Defendants Delgado and Dominion Marketing Group, LLC for $97,480 on 9/9/15. Judgment Debtor has made no attempt to resolve the judgment, which remains outstanding.

Judgment Debtor is married to Alma Delgado, who lists their date of marriage on an online profile as March 4, 2000. (Compton Decl., ¶ 4.) Thus, Judgment Debtor was married at the time the debt was incurred in 2015, so the community estate becomes subject to enforcement of the judgment.

In opposition, Judgment Debtor contends the judgment is void pursuant to CCP § 473(d). However, no court has adjudged the judgment to be void, and Judgment Debtor’s motion to set aside the judgment is not now before the court.

Having failed to raise any substantive opposition to the motion to attach spousal wages, the court finds Judgment Creditor’s request to attach spousal wages is valid.

Motion is GRANTED.

Case Number: VC064222    Hearing Date: November 03, 2020    Dept: C

RAMIREZ v. DELGADO, et al.

CASE NO.: VC064222

HEARING: 11/3/20 @ 2:30 PM

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

#9

TENTATIVE ORDER

Judgment Creditor Judgment Recovery Assistance, LLC’s motion to attach spousal wages is GRANTED.

Moving Party to give NOTICE.

Judgment Creditor Judgment Recovery Assistance, LLC moves to attach spousal wages.

Judgment Creditor obtained a judgment against Defendants Delgado and Dominion Marketing Group, LLC for $97,480 on 9/9/15. Judgment Debtor has made no attempt to resolve the judgment, which remains outstanding.

Judgment Debtor is married to Alma Delgado, who lists their date of marriage on an online profile as March 4, 2000. (Compton Decl., ¶ 4.) Thus, Judgment Debtor was married at the time the debt was incurred in 2015, so the community estate becomes subject to enforcement of the judgment.

In opposition, Judgment Debtor contends the judgment is void pursuant to CCP § 473(d). However, no court has adjudged the judgment to be void, and Judgment Debtor’s motion to set aside the judgment is not now before the court.

Having failed to raise any substantive opposition to the motion to attach spousal wages, the court finds Judgment Creditor’s request to attach spousal wages is valid.

Motion is GRANTED.