Plaintiff and Cross-Defendant Rickie Hulsey’s motion to vacate order declaring Plaintiff a vexatious litigant; motion to vacate default; motion to vacate default judgment
Plaintiff has filed at least 7 motions in attempts to relitigate the validity of the February 3, 2023 judgment.
A court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. (Civ. Proc. Code § 473(b).) Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken. (Id.)
As stated previously, this motion was filed on January 29, 2026, almost 4 years after Plaintiff’s default was entered on June 1, 2022 and almost 3 years after the default judgment was entered on February 3, 2023. (ROAs 267, 339.) Thus, the motion is not timely.
Further, this Court has addressed Plaintiff’s contention that she was never served with the Summons re: Cross-Complaint or Cross- Complaint on multiple occasions. (See ROA 16, 142, 238, 318, 376, 431, and 455.) The matter is well settled in this action and Plaintiff’s request to set aside the default judgment on this ground is denied. As previously stated, Plaintiff already moved to strike the cross-complaint without objecting to service, therefore, Plaintiff has already appeared in this action and consented to the Court’s jurisdiction. (ROA No. 22.) Filing a motion to strike is a general appearance. (Code Civ. Proc., § 1014.)
Plaintiff also moves to vacate the January 22, 2026 order declaring Plaintiff a vexatious litigant. Plaintiff advances three primary arguments in support of that motion.
First, Plaintiff contends that the order is void for lack of personal jurisdiction. This contention relies entirely on the argument that Plaintiff was not properly served with the Cross-Complaint. As discussed previously, this argument lacks merit.
Second, Plaintiff contends that the vexatious litigant motion was not properly noticed under Code Civ. Proc. § 1005(b). The Court already addressed this contention earlier. (ROA 540.) The motion was served by mail on December 22, 2025. Sixteen court days before January 22, 2026 is December 29, 2025. Accounting for the extra 5 days required for mail service, service on December 22, 2025 was sufficient.
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Third, Plaintiff contends the notice of motion stated an incorrect case number and an incorrect hearing year. Again, the Court already addressed this contention in the January 22, 2026 ruling. (ROA 540.) These typographical errors were immaterial, as Plaintiff herself knew that the hearing was set for January 22, 2026. (ROA 516, 540.) She filed an opposition and she appeared at the hearing. (Ibid.)
The motions are denied.
The moving party to give notice.
5 N.B.S. Diamonds Plaintiff N.B.S Diamonds, Inc. dba Scarselli Diamonds’ motion for leave to Inc. v. Lugano file a second amended complaint is CONTINUED to January 28, 2027, at Diamonds & 1:30 p.m. in this department. Jewelry Inc. Leave to amend should be granted liberally to accomplish substantial justice for both parties. (Code Civ. Proc., § 473, subd. (a); Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 488-489 (“Hirsa”).) “If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend....” (Morgan v.
Sup. Ct. (1959) 172 Cal.App.2d 527, 530.) Prejudice includes “delay in trial, loss of critical evidence, or added costs of preparation.” (Solit v. Tokai Bank, Ltd. New York Branch (1999) 68 Cal.App.4th 1435, 1448.) “The power to permit amendments is interpreted very liberally as long as the plaintiff does not attempt to state facts which give rise to a wholly distinct and different legal obligation against the defendant.” (Herrera v. Superior Court (1984) 158 Cal.App.3d 255, 259.) “Allowing the filing of [_] an amendment is in furtherance of justice and in keeping with the fundamental policy of our courts that cases should be decided on their merits.” (Hirsa, supra, at p.490.)
It is “an abuse of discretion to deny leave to amend where the opposing party was not misled or prejudiced by the amendment.” (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048.)
Under California Rules of Court Rule 3.1324(a), a motion to amend a pleading shall (1) include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments; (2) state what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph and line number, the deleted allegations are located; and (3) state what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located. Under California Rule of Court Rule 3.1324(b), a separate declaration must accompany the motion and must specify (1) the effect of the amendment; (2) why the amendment is necessary and proper; (3) when the facts giving rise to the amended allegations were discovered; and (4) the reasons why the request for amendment was not made earlier.
Here, Plaintiff has substantially complied with the requirements for leave to amend under Rule 3.1324. However, Plaintiff originally filed the motion on January 21, 2026, seeking leave to file the proposed second amended complaint attached as Exhibit 1 to ROA # 83. Since then, however, Plaintiff has obtained relief from the automatic stay against Defendant Lugano Diamonds & Jewelry, Inc. On June 18, 2026, therefore, Plaintiff filed a supplemental declaration for the motion, asking the court to, instead, grant Plaintiff leave to file a revised proposed second amended complaint, which is attached as Exhibit A to ROA #107. The June 18, 2026 declaration, however, fails to give Defendants sufficient notice of the revised relief that Plaintiff seeks.
For this reason, to ensure due process, the court continues the hearing to January 28, 2027, at 1:30 p.m. in this department. Plaintiff is ordered to serve Defendants an amended notice of Plaintiff’s revised request in a
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