Judge: Andrew E. Cooper, Case: 23CHCV01853, Date: 2025-01-22 Tentative Ruling

Case Number: 23CHCV01853    Hearing Date: January 22, 2025    Dept: F51

MOTION TO VACATE/SET ASIDE DEFAULT JUDGMENT

Motion Filed: 9/16/24

MOVING PARTIES: Defendant Sonia Michelle Sanchez (“Defendant”)

RESPONDING PARTY: Plaintiffs Anette Marie Rivas, and Lenore Esther Juarez Maledon (collectively, “Plaintiffs”)

NOTICE: OK

RELIEF REQUESTED: An order vacating the default judgment entered against Defendant on 3/19/24 and 4/12/24.

TENTATIVE RULING: The unopposed motion is granted. Defendant is relieved from the entry of default and default judgment against her. Defendant to separately file and serve her proposed answer within 10 days.

BACKGROUND

On 6/26/23, Plaintiffs filed the instant action against Defendant, alleging the following causes of action: (1) Motor Vehicle Negligence; and (2) General Negligence.

On 7/17/23, Plaintiffs filed a proof of service stating that the complaint and summons were served on Defendant via substitute service on 7/9/23.

On 9/14/23 and 2/1/24, the Court entered default against Defendant. On 3/19/24, the Court entered a default judgment against Defendant for damages in the amount of $27,305.00, and costs in the amount of $535.45, for a total of $27,840.45. On 4/12/24, the Court amended the default judgment to enter a judgment against Defendant for damages in the amount of $28,665.00 and costs of $785.45, for a total of $29,450.45.

On 9/15/24, Defendant filed the instant motion. 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).) “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.)

“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.” (Code Civ. Proc. § 473.5, subd. (a).)

Here, Defendant argues that the address where the complaint and summons were originally served was incorrect, and therefore she lacked actual notice of the instant action until after default was entered against her, as evidence by the answer she attempted to file on 10/11/23. (Def.’s Mot. 15:15–28.)

Defendant also seeks to vacate the default judgment against her “because Defendant's failure to respond was due to mistake and excusable neglect resulting from clerical errors and changes in counsel, rather than inexcusable neglect or avoidance of service.” (Id. at 4:7–8.) To the extent that Defendant seeks mandatory relief from the default judgment against her based on her attorney’s mistake, inadvertence, surprise, or excusable neglect, Defendant has not provided the Court with the requisite attorney affidavit of fault, and therefore is not entitled to this form of relief. (Code Civ. Proc. § 473, subd. (b).)

To the extent that Defendant seeks discretionary relief from the default judgment against her based on her own mistake, inadvertence, surprise, or excusable neglect, Defendant contends that she was mistaken in signing a declaration stating that she moved to her current address in June 2023, when she in fact relocated in November 2022, as indicated in her attached lease agreement. (Exs. A and B to Decl. of Matthew S. Garvey.)

The Court notes that Plaintiffs have failed to oppose the instant motion, and that “because the law strongly favors trial and disposition on the merits, any doubts in applying section 473 must be resolved in favor of the party seeking relief from default.” (Elston v. City of Turlock (1985) 38 Cal.3d 227, 233.) Based on the foregoing, the Court finds that Defendant is entitled to relief from the default judgment entered against her on 3/19/24 and 4/12/24. The Court further notes the lack of proofs of service on Defendant of the entry of default and default judgment against her. Accordingly, the unopposed motion is granted pursuant to Code of Civil Procedure section 473, subdivision (b).

CONCLUSION

The unopposed motion is granted. Defendant is relieved from the entry of default and default judgment against her. Defendant to separately file and serve her proposed answer within 10 days.