Judge: Audra Mori, Case: 21STCV44547, Date: 2022-09-19 Tentative Ruling

Case Number: 21STCV44547    Hearing Date: September 19, 2022    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background

Plaintiffs Ana Becerra and Vicente Pantoja (collectively, “Plaintiffs”) filed this action against Jorge Rubio, Jr. (“Rubio”) and American Wrecking, Inc. (“American”) (collectively, “Defendants”) for damages arising from a motor vehicle accident.   On January 25, 2022, Plaintiffs filed proof of service showing that American was personally served with the summons and complaint on January 24, 2022, and Rubio was served by substituted service on this same date.  Plaintiff then had each of Rubio’s and American’s default entered on April 1, 2022. 

On May 12, 2022, Defendants filed the instant motion to set aside the defaults pursuant to CCP § 473.5.  The motion is unopposed.

2. Motion

CCP § 473.5:

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.

Here, the CFO and agent of service for American asserts that Defendants were not aware of the alleged January 2022 service of the summons and complaint on Rubio and American, and that Defendants do not recall being served with the summons and complaint.  (Mot. Galaviz Decl. ¶¶ 2-3.)  The first time Defendants recall being served with anything relating to this action is the notice of default Defendants received on March 31, 2022, which Defendants each believed was the complaint.  (Id. at ¶ 3.)  On the same day that Defendants received the notice of default, Defendants tendered the papers to American’s insurance carrier and promptly retained counsel.  (Id. at ¶¶ 5-6.)  Further, Defendants aver that they did not attempt to avoid service.  The motion is unopposed, and Plaintiff does not otherwise dispute Defendants’ contentions.  Defendants’ evidence is sufficient to establish they did not have actual notice of the summons and complaint, and the lack of notice was not caused by Defendants’ inexcusable neglect or avoidance of service.  (See Anastos v. Lee (2004) 118 Cal.App.4th 1314, 1319.) 

Based on the foregoing, Defendants’ motion to set aside default is granted.  Defendants are ordered to file a separate copy of their proposed responsive pleading within ten (10) days.

Defendants are ordered to give notice. 

PLEASE TAKE NOTICE:

• Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement.
• If a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept31@lacourt.org with the Subject line “SUBMIT” followed by the case number.  The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.  
• Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.  You should assume that others may appear at the hearing to argue.  
• If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.  After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave. 

Dated this 19^th day of September 2022