Judge Audra Mori, Case 20STCV00982 2022-10-04 Tentative Ruling

Plaintiff Aura Valdez Lopez (“Plaintiff”) filed this action against defendants Fernando C. Cuevas, Los Angeles Police Department, and City of Los Angeles for damages arising from a motor vehicle accident that occurred on July 3, 2019.

As relevant to this proceeding, Plaintiff filed proof of service of the summons showing personal service of the summons and complaint on Defendant Fernando C. Cuevas (“Defendant” or “Cuevas”) at 4308 W. 135th Street, Hawthorne, CA 90250. Thereafter, after no responsive pleading was filed, on August 20, 2020, Plaintiff had Defendant Cuevas’s default entered.

On July 11, 2022, Defendant Cuevas filed the instant motion to set aside the entry of default, seeking to vacate the entry of default and allow Defendant to file his answer attached to the motion Plaintiff opposes the motion, and Defendant filed a reply.[1]

Defendant moves to set aside the default entered against him under CCP § 473.5. Defendant asserts that he was never served with Plaintiff’s summons and complaint. Defendant states that he did not live at the Hawthorne address at the time of the service stated in Plaintiff’s proof of service of the summons. Defendant provides that at the time the default was entered, he was not employed by the City of Los Angeles (the “City”) but returned to work for the Los Angeles Police Department (“LAPD”) on June 7, 2020, and was informed of the default after it was entered. Defendant contends that his lack of knowledge about this lawsuit was not due to attempts to avoid service or inexcusable neglect. Alternatively, Defendant moves to set aside the default pursuant to CCP § 473(b) based on Defendant’s mistake, inadvertence, or excusable neglect. Defendant contends Plaintiff will not be prejudiced if the default is set aside.

In opposition, Plaintiff argues that Defendant responded to Plaintiff’s form interrogatories on May 6, 2021, so Defendant has made a general appearance in this action and waived all defects regarding personal jurisdiction. Plaintiff contends that Defendant’s general appearance after the default was entered renders the default procedurally valid. Additionally, Plaintiff argues that Defendant submits no evidence to rebut the evidentiary presumption of proper service under Evidence Code § 647, and that Defendant’s motion fails to comply with the requirements of CCP § 473(b).

In reply, Defendant asserts that he does not take issue with the fact that a general appearance was made by him when he responded to Plaintiff’s form interrogatories, but the subject default was entered against Defendant before his general appearance. Defendant asserts that he seeks to vacate the default to defend himself at trial, as he will be severely prejudiced if he cannot defend himself.

To the extent that Defendant seeks relief pursuant to CCP § 473(b), the motion is untimely. Defendant cites to the discretionary provision of CCP § 473(b), which provides:

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.

Thus, “An [a]pplication for discretionary relief must be made within a reasonable time, not exceeding six months, after the judgment, dismissal, order, or proceeding was taken. (§ 473, subd. (b).) … The six-month limit is mandatory; a court has no authority to grant relief under section 473, subdivision (b), unless an application is made within the six-month period.” (Arambula v. Union Carbide Corp. (2005) 128 Cal.App.4th 333, 340.)

In this case, Defendant’s default was entered on August 20, 2020, but Defendant did not file the motion until July 11, 2022. Accordingly, Defendant’s motion is clearly untimely under CCP § 473(b).

(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.

(b) A notice of motion to set aside a default or default judgment and for leave to defend the action shall designate as the time for making the motion a date prescribed by subdivision (b) of Section 1005, and it shall be accompanied by an affidavit showing under oath that the party's lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect. The party shall serve and file with the notice a copy of the answer, motion, or other pleading proposed to be filed in the action.

(c) Upon a finding by the court that the motion was made within the period permitted by subdivision (a) and that his or her lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect, it may set aside the default or default judgment on whatever terms as may be just and allow the party to defend the action.

Regarding a proof of service completed by a registered process server, Evidence Code § 647 states that the “return of a process server registered pursuant to Chapter 16 (commencing with Section 22350) of Division 8 of the Business and Professions Code upon process or notice establishes a presumption, affecting the burden of producing evidence, of the facts stated in the return.” Where service is carried out by a registered process server, Evidence Code § 647 applies to eliminate the necessity of calling the process server as a witness as trial. (Palm Property Investments, LLC v. Yadegar (2011) 194 Cal.App.4th 1419, 1427.) The proof of service in this circumstance establishes a presumption, affecting the burden of producing evidence of the facts stated in the return. (Id. at 1428.) “The effect of a presumption affecting the burden of producing evidence is to require the trier of fact to assume the existence of the presumed fact unless and until evidence is introduced which would support a finding of its nonexistence. . .” (Id.)

Here, Defendant asserts that he was never served with a summons and complaint in this matter and that he has never lived at the Hawthorne address stated on Plaintiff’s proof of service of summons. (Mot. Cuevas Decl. ¶¶ 4-5.) Further, Defendant avers that he never avoided service of process in this action and that his lack of knowledge was not due to any attempts to avoid service or inexcusable neglect. (Id. at ¶ 4.) Defendant attests that Plaintiff served the summons and complaint on a different individual named Fernando Cuevas at the Hawthorne address, and Defendant asserts that he had no knowledge of this lawsuit prior to the default being entered against him. (Id. at ¶ 5, Rawlins Decl. ¶¶ 4-6.) Defendant submits a copy of the answer Defendant proposes to file in this action. (Mot. Exh. 1.) The answer complies with CCP § 446. (“if … an officer of such state, county, city, school district, district, public agency, or public corporation, in his or her official capacity is defendant, its or his or her answer need not be verified.”)

While Plaintiff correctly states that it is Defendant’s burden to provide evidence to contradict the facts stated in the proof of service, Defendant’s evidence is sufficient to rebut the presumption under Evidence Code § 647 that service was properly completed on him as stated in the proof of service. Plaintiff does not otherwise submit any evidence to show that Defendant was the correct Fernando Cuevas served at the Hawthorne address or to dispute Defendant’s claim that he has never lived at that address or been served with the summons and complaint. Moreover, Defendant’s motion was timely filed within two years of the default being entered against him. Defendant’s counsel provides that defense counsel previously met and conferred with Plaintiff’s counsel on multiple occasions regarding setting aside the default, but Plaintiff’s counsel declined. (Mot. Rawlins Decl. ¶ 7.) Furthermore, although Plaintiff contends that Defendant has made a general appearance in this action by responding to Plaintiff’s form interrogatories after the default was entered against Defendant, Plaintiff cites no authority holding that this precludes Defendant from seeking to set aside the default against him. Defendant does not dispute making a general appearance in this action and is not directly challenging the Court’s jurisdiction over him; rather, Defendant is seeking to set aside the default against him to file an answer and defend against Plaintiff’s claims. Although Plaintiff contends she will be prejudiced if the default is set aside, Plaintiff fails to identify any actual prejudice she will suffer if the default is set aside.

Based on the foregoing, Defendant’s motion to set aside default is granted. Defendant Cuevas is ordered to file a separate copy of his proposed answer within ten (10) days.

Hon. Audra Mori

Judge of the Superior Court

[1] On September 26, 2022, six court days before the hearing, Plaintiff filed a second opposition to the motion. However, Plaintiff did not request, provide good cause, or receive leave to make a surreply. Therefore, the surreply will not be considered.