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civil tentative rulings


The court does not issue tentative rulings on Writs of Attachment, Writs of Possession, Claims of Exemption, Claims of Right to Possession, Motions to Tax Costs After Trial, Motions for New Trial, or Motions to Continue Trial.


Under California Rules of Court, rule 3.1308 and Local Rule 701, any party opposed to the tentative ruling must notify the court, and other parties, by 4:00 p.m. on the court day before the hearing of their intention to appear for oral argument. The court's notice must be made by facsimile to 559-733-6774.


Timestamp: 05/04/2016 at 11:36pm



The Tentative Rulings for Thursday May 5, 2016 are:

Re:          CACV v. Gutierrez

Case No: VCL 106811

Date:       May 5, 2016

Time:       8:30 A.M. 

Dept.       2 - The Honorable David Mathias

Motion:   Hearing on Order to Show Cause re: Plaintiff’s application for sale of dwelling.

Tentative Ruling:  There is no tentative ruling in this matter.  The parties are directed to appear.

Re:             Oliver v. Kraft

Case No.:   VCU 209730

Date:          May 5, 2016

Time:          8:30 A.M. 

Dept.           2– The Honorable David Mathias

Motion:       Defendant Rune Kraft’s Motion to Void Default Judgment and Request for Sanctions

Tentative Ruling:  To deny defendant Rune Kraft’s motion to void default judgment and request for sanctions

Defendant Rune Kraft moves this Court to void a default that was entered against him on July 29, 2004 and a default judgment entered against him on October 22, 2004. While Mr. Kraft does not cite any specific statutory authority to support his right to relief, the controlling authorities under which relief from a default can be obtained are CCP§473(b) and CCP 473.5, and both of these sections have a six-month window from the date of entry of default. 

But where this six-month window under either CCP§473(b) and/or CCP 473.5 closed no later than January 31, 2005, the only basis upon which Mr. Kraft can timely seek relief to void the default and default judgments against him is by a showing of “extrinsic fraud or mistake.”  See, e.g., Olivera v. Grace (1942) 19 Cal.2d 570, 576.

To vacate a default on the basis of extrinsic fraud or mistake, the party in default must show (a) a meritorious defense; (b) a satisfactory excuse for not presenting a defense to the original action and (c) diligence in seeking to set aside the default once it was discovered. See Rappleyea v. Campbell (1994) 8 Cal.4th 975, 982. 

But relief based on extrinsic fraud or mistake is unavailable where the defaulting party has been given notice of the action yet fails to appear, unless this party was prevented from participating in the action. Kulchar v. Kulchar (1969) 1 Cal.3d 467, 472; Cruz v. Fagor America (2006) 146 Cal.App.4th 488, 502.

Defendant Kraft’s moving papers provide no factual basis to support relief from default under the Rappleyea criteria – and the Court’s record for this action indicates that Mr. Kraft had multiple opportunities to timely respond to the plaintiff’s complaint, but simply failed to do so.

The Court’s record for this action is undisputed in that Mr. Kraft was personally served with plaintiff’s summons and complaint as per CCP §415.10 at his 115 N. Akers St, Visalia, California address on June 28, 2004, and Mr. Kraft’s moving papers do not dispute that he resided at that Visalia address on that date.  See Exhibit “A” to plaintiff’s opposition to defendant Kraft’s motion to void default judgment and request for sanctions.  Thus under CCP §412.20 (a) (3), Mr. Kraft had thirty calendar days from June 28, 2004 to respond to the plaintiff’s complaint but failed to do so.

Nor does Mr. Kraft deny receipt of plaintiff’s “Request to Enter Default” that was mailed on July 29, 2004 to the same Visalia address where he was personally served with the plaintiff’s summons and complaint.  Nor does Mr. Kraft deny that he received the “Notice of Entry of Judgment and Default Judgment” that plaintiff’s counsel mailed to this same Visalia address on October 22, 2004, and the court’s record contains proofs of service on Mr. Kraft for both the request to enter default and the notice of entry of default judgment.

Based on the Court’s record for this action, the Court finds that there are no plausible factual grounds to support defendant Kraft’s charge that a default judgment was entered against him based on ‘extrinsic fraud or mistake”  or that he was “denied his day in Court.”

The Court’s record for this case is clear that the plaintiff followed all the necessary statutory requirements to put Mr. Kraft on notice of this action that was filed against him and, when Mr. Kraft failed to timely respond to the plaintiff’s complaint as required under CCP §412.20 (a)(3), that the plaintiff had the right to both request that a default be entered against Mr. Kraft, and then subsequently to obtain a default judgment against him.  It is noted that in the October 22, 2004 Judgment the Court made a finding that the defendant was properly served with the Summons and Complaint.

Nor is there any merit to Mr. Kraft’s contention that this default judgment should be vacated because CCP §425.115 requires that a statement of damages be served on the defendant “in the same manner as the summons and complaint” when the plaintiff seeks punitive damages in the action.   This is because the default judgment that the trial court entered for the plaintiff was limited to contractual damages of $25,000.000 plus attorney fees and costs.

Therefore, where the default judgment entered against Mr. Kraft in this action did not include an award of punitive damages, that Mr. Kraft may or may not have been served with a statement of damages as per §425.115 is immaterial and does not afford to Mr. Kraft any grounds to support an order to vacate the default judgment that plaintiff obtained against him.

Based on the foregoing, defendant Rune Kraft’s motion to void default judgment and request for sanctions is denied in its entirety.

If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order.

Re:              Delamora v. Bar VP Dairy

Case No.:   VCU 261542

Date:          May 5, 2016

Time:          8:30 A.M. 

Dept.          2– The Honorable David Mathias

Motions:    (1) Plaintiff’s Motion to Compel Further Answers to Plaintiff’s First Set of Special Interrogatories; (2) Plaintiff’s Motion to Compel Further Responses to Plaintiff’s First Demand for Production of Documents

Tentative Rulings:  There are no tentative rulings for these motions.  The parties are directed to meaningfully meet and confer before the hearing for these discovery motions to resolve the issues raised in these motions. If unable to resolve, the parties are directed to personally appear before the court at the hearing for these discovery motions to meet and confer further.  No CourtCall will be permitted if the parties are unable to resolve the issues in these discovery disputes before the hearing of these discovery motions.

If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order.

 


This concludes the civil tentative rulings



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