On 05/09/2018 a Contract - Professional Negligence case was filed by KATHARINE FRAIJO against DANIEL HITZKE in the jurisdiction of Los Angeles County Superior Courts, Governor George Deukmejian Courthouse located in Los Angeles, California.
Pending - Other Pending
Los Angeles County Superior Courts
Governor George Deukmejian Courthouse
Los Angeles, California
MARK C. KIM
DOES 1 THROUGH 10
LEGACY GROUP FINANCIAL AND INSURANCE
HITZKE & ASSOCIATES
VASQUEZ ESTRADA & CONWAY LLP(M A VASQUEZ)
VASQUEZ ESTRADA & CONWAY LLPM A VASQUEZ
VASQUEZ MICHAEL ANTHONY
Attorney at Vasquez Estrada & Conway LLP
1000 4Th St Ste 500
San Rafael, CA 94901
11/18/2019: Objection - OBJECTION PLAINTIFF KATHARINE FRAIJO'S OBJECTIONS TO THE DECLARATION OF DEF DANIEL HITZKE SUBMITTED IN SUPPORT OF MOTION TO SET ASIDE DEFAULT
11/22/2019: Reply - REPLY REPLY TO OBJECTIONS
11/25/2019: Memorandum - MEMORANDUM PLAINTIFF'S SUPPLEMENTAL MEMORANDUM RE: DEFENDANT HITZKE'S REPLY TO OPPOSITION TO MOTION TO SET ASIDE DEFAULT
8/15/2019: Declaration - DECLARATION DECLARATION OF MICHAEL A. VASQUEZ IN SUPPORT OF APPLICATION FOR DEFAULT JUDGMENT; RE; NOMILITARY SERVICE; AND INTEREST COMPUTATIONS
8/21/2019: Minute Order - MINUTE ORDER (ORDER TO SHOW CAUSE RE: CCP 585 DEFAULT PACKET)
4/9/2019: Minute Order - MINUTE ORDER (CASE MANAGEMENT CONFERENCE; LEGACY EVENT TYPE)
5/9/2018: Notice of Case Management Conference
5/9/2018: Civil Case Cover Sheet
6/7/2018: Legacy Document - LEGACY DOCUMENT TYPE: Rtn of Service of Summons & Compl
7/13/2018: Request for Entry of Default / Judgment
7/20/2018: Legacy Document - LEGACY DOCUMENT TYPE: Rtn of Service of Summons & Compl
7/23/2018: Minute Order - Minute order entered: 2018-07-23 00:00:00
7/30/2018: Legacy Document - LEGACY DOCUMENT TYPE: Default Entered
8/16/2018: Minute Order - Minute order entered: 2018-08-16 00:00:00
7/20/2018: Proof of Service of Summons and Complaint -
10/9/2018: Minute Order - (Case Management Conference and Order to Show Cause re Proof o...)
8/31/2018: Notice - Of Entry Of Minute Order
7/31/2018: Request for Entry of Default / Judgment -
Hearing12/03/2019 at 08:30 AM in Department S27 at 275 Magnolia, Long Beach, CA 90802; Hearing - Other re: General Damages & Attonry FeesRead MoreRead Less
Hearing12/03/2019 at 08:30 AM in Department S27 at 275 Magnolia, Long Beach, CA 90802; Hearing on Motion to Set Aside/Vacate Judgment (CCP 473)Read MoreRead Less
DocketMemorandum (Plaintiff's Supplemental Memorandum Re: Defendant Hitzke's Reply to opposition to Motion to Set Aside Default); Filed by KATHARINE FRAIJO (Plaintiff)Read MoreRead Less
DocketReply (Reply to Opposition to Motion to Set Aside Default); Filed by DANIEL HITZKE (Defendant); HITZKE & ASSOCIATES (Defendant)Read MoreRead Less
DocketReply (Reply to objections); Filed by DANIEL HITZKE (Defendant); HITZKE & ASSOCIATES (Defendant)Read MoreRead Less
DocketDeclaration (DECLARATION OF MICHAEL A. VASQUEZ IN SUPPORT OF PLAINTIFF'S OPPOSIITON TO DEF DANIEL HITZKE AND HITZKE & ASSOCIATES MOTION TO SET ASIDE DEFAULT); Filed by KATHARINE FRAIJO (Plaintiff)Read MoreRead Less
DocketOpposition (PLAINTIFF'S OPPOSITION TO DEFENDANT DANIEL HITZKE AND HITZKE & ASSOCIATES MOTION TO SET ASIDE DEFAULT); Filed by KATHARINE FRAIJO (Plaintiff)Read MoreRead Less
DocketObjection (PLAINTIFF KATHARINE FRAIJO'S OBJECTIONS TO THE DECLARATION OF DEF DANIEL HITZKE SUBMITTED IN SUPPORT OF MOTION TO SET ASIDE DEFAULT); Filed by KATHARINE FRAIJO (Plaintiff)Read MoreRead Less
DocketProof of Service by Mail; Filed by KATHARINE FRAIJO (Plaintiff)Read MoreRead Less
Docketat 08:30 AM in Department S27, Mark C. Kim, Presiding; Hearing - Other (reGeneral Damages & Attonry Fees) - Not Held - Continued - Court's MotionRead MoreRead Less
DocketProof of Service of Summons and ComplaintRead MoreRead Less
DocketRtn of Service of Summons & Compl; Filed by KATHARINE FRAIJO (Plaintiff)Read MoreRead Less
DocketProof of Service (not Summons and Complaint); Filed by PlaintiffRead MoreRead Less
DocketNotice of Case Reassignment and Order for Plaintiff to Give Notice; Filed by ClerkRead MoreRead Less
DocketNotice of Case Management Conference; Filed by ClerkRead MoreRead Less
DocketComplaint; Filed by KATHARINE FRAIJO (Plaintiff)Read MoreRead Less
DocketNotice of Case Assignment - Unlimited Civil CaseRead MoreRead Less
DocketCivil Case Cover SheetRead MoreRead Less
DocketOrder (To Show Cause Hearing)Read MoreRead Less
DocketSummons; Filed by KATHARINE FRAIJO (Plaintiff)Read MoreRead Less
Case Number: NC061785 Hearing Date: December 03, 2019 Dept: S27
Defendants Daniel Hitzke and Hitzke & Associates move to vacate defaults entered against them under the discretionary provision of CCP §473(b). He also appears to rely on the timing provisions of CCP §473.5.
Defendant do not dispute proper service of the summons and complaint.
This litigation was filed on May 9, 2018.
Defendants were served on June 1, 2018.
Default was entered as against Daniel Hitzke, individually, on July 13, 2018.
Default was entered against Hitzke & Associates on September 25, 2018.
No judgment has been entered to date against any Defendant.
This motion was filed on September 19, 2019.
NATURE OF THE CASE
Briefly, Plaintiff alleges Defendants represented her in a workers’ compensation proceeding. The case settled. Hitzke advised Plaintiff that she was required to place about $47,000 of a $98,000 settlement into a “Medicare Set Aside” account. Hitzke referred Plaintiff to Co-Defendants Thomas Fallon and Legacy Group Financial and Insurance Services, Inc. to set up and maintain this account. Plaintiff alleges that it was a misrepresentation that this set-aside account was necessary. The Co-Defendants embezzled the funds entrusted to them.
Under CCP §473(b): “Application for this relief . . . shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” This limitation is jurisdictional. This motion was not filed within six months of the entry of default for either Defendant.
Defendants seek to avoid the limitation by relying on CCP §473.5 which has a more generous window for relief:
“(a) When service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action. The notice of motion shall be served and filed within a reasonable time, but in no event exceeding the earlier of: (i) two years after entry of a default judgment against him or her; or (ii) 180 days after service on him or her of a written notice that the default or default judgment has been entered.”
As can be seen by the plain language of the statute, it has no application to the present case. This is not a case where “service of a summons has not resulted in actual notice to a party in time to defend the action.”
To the contrary, Mr. Hitzke does not dispute Defendants were served in a method that resulted in actual notice. Mr. Hitzke, an attorney, declares he believed claims filed against him “were defended by the Reif Law group.” In September 2018 he received notice from his liability insurance carrier that they were denying coverage for Plaintiff Fraijo’s claim. He contacted the Reif Law Group to discuss this development and they “continued to work with me and led me to believe they were continuing to represent me and would contest denial of coverage.” He did not realize Reif Law group was not representing him until August 2019 when a representative of the law group sent him an e-mail stating they would not be representing him absent payment of a large retainer. He admits he should not have assumed he was being represented. He was not served with request for entry of default.
Had this motion been timely, the court might have agreed that the evidence supports excusable neglect, but the issue of timeliness is jurisdictional. He cannot import the timing requirements of CCP §473.5 into CCP §473(b). He had six months from entry of default to set it aside. He did not do so. Even though judgment has not been entered, the default cannot be set aside under CCP §473.
“Williams's motion was filed less than six months after entry of the default judgment, but more than six months after entry of its default. The trial court therefore could not set aside the default under Code of Civil Procedure section 473. And because it 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.”’ (Howard Greer Custom Originals v. Capritti (1950) 35 Cal.2d 886, 888.) ‘“If the judgment were vacated, it would be the duty of the court immediately to render another judgment of like effect, and the defendants, still being in default, could not be heard in opposition thereto. …”’ (Id. at p. 889; accord, Weiss v. Blumencranc (1976) 61 Cal.App.3d 536, 541; Koski v. U-Haul Co. (1963) 212 Cal.App.2d 640, 643.)
We therefore conclude that Williams was not entitled to relief under Code of Civil Procedure section 473.” (Pulte Homes Corp. v. Williams Mechanical, Inc. (2016) 2 Cal.App.5th 267, 273.)
Defendant cannot obtain relief under CCP §473(b) or §473.5.
The motion is denied.