Judge: Andrew E. Cooper, Case: 23CHCV00006, Date: 2024-04-17 Tentative Ruling

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Case Number: 23CHCV00006    Hearing Date: April 17, 2024    Dept: F51

MOTION TO VACATE/SET ASIDE DEFAULT JUDGMENT

Motion Filed: 9/20/23

MOVING PARTY: Defendant Edith M. Wims (“Defendant”)

RESPONDING PARTY: Plaintiff Midland Credit Management, Inc. (“Plaintiff”)

NOTICE: OK 

RELIEF REQUESTED: An order vacating the default judgment entered against Defendant on 4/18/23.

TENTATIVE RULING: The unopposed motion is denied.

BACKGROUND

This is a collections case in which Plaintiff, a collections agency, alleges that Defendant defaulted on her credit account with non-party Capital One Bank USA, N.A. on 7/5/19, and currently owes $27,104.21. (Compl. ¶¶ 5, 22.)

On 1/3/23, Plaintiff filed its complaint against Defendant for Account Stated. On 4/6/23, default was entered against Defendant. On 4/18/23, default judgment was entered against Defendant in the total amount of $27,630.11.

On 9/12/23, Defendant filed an ex parte application to set aside the default judgment against her, which the Court denied. On 9/20/23, Defendant filed the instant noticed motion to set aside the default judgment. No opposition has been filed to date.

ANALYSIS

“The 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. 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.” (Code Civ. Proc. § 473, subd. (b) [emphasis added].)

Here, Defendant declares under penalty of perjury that she was never served with the Summons and Complaint in the instant action. (Decl. of Edith M. Wims ¶¶ 2, 8.) Defendant further declares that she was not provided any additional notices regarding the further proceedings in the action. (Id. at ¶¶ 5–7.)

However, the 1/30/23 proof of service associated with the complaint/summons states that D was personally served on 1/28/23, in direct contradiction to her declaration.

“The return of a [registered] process server … establishes a presumption, affecting the burden of producing evidence, of the facts stated in the return.” (Evid. Code § 647.) “The filing of a proof of service creates a rebuttable presumption that the service was proper.” (Floveyor International, Ltd. v. Superior Court (1997) 59 Cal.App.4th 789, 795.)

Although Plaintiff has failed to oppose the instant motion/provide additional evidence of service on Defendant, these motions are discretionary when it comes to a party’s own mistake/inadvertence/surprise/neglect (as opposed to compulsory re attorney mistake). To the extent that D is attempting to quash service, she has missed the deadline to file that particular motion.

The Court notes that Defendant has failed to attach a copy of her proposed Answer to Plaintiff’s complaint. For the reasons set forth above, the Court denies Defendant’s motion to set aside the default/default judgment entered against her without prejudice.

CONCLUSION

The unopposed motion is denied.