Judge: Barbara M. Scheper, Case: 23STCV31642, Date: 2024-12-06 Tentative Ruling

Case Number: .23STCV31642    Hearing Date: December 6, 2024    Dept: 30

Dept. 30

Calendar No.

Siggins vs. Room Forty, Inc., et. al., Case No. 23STCV31642

Tentative Ruling re:  Defendant’s Motion to Set Aside Default

Jeanne Guy (Defendant) moves to vacate the default entered against her on August 29, 2024, in favor of Louis Edward Siggins (Plaintiff).  The unopposed motion is granted.  Defendant is ordered to answer within ten (10) days of today’s date.

Under Code of Civil Procedure section 473, “[t]he 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).) Courts may also set aside any void judgments or orders upon the motion of a party. (Id., § 473, subd. (d).)

“Section 473 is a remedial statute to be ‘applied liberally’ in favor of relief if the opposing party will not suffer prejudice.”  (Minick v. City of Petaluma (2016) 3 Cal.App.5th 15, 24.) “To obtain discretionary relief for attorney error under section 473, subdivision (b), counsel's neglect must be excusable.” (Id. at 27.)

Defendant contends that relief from default is warranted because Plaintiff never was served with the summons or complaint. A default judgment entered against a defendant not properly served with a summons in the manner prescribed by statute is void. (Hearn v. Howard (2009) 117 Cal.App.4th 1193, 1200.) Thus, under section 473, subdivision (d), “the court may set aside a default judgment which is valid on its face, but void, as a matter of law, due to improper service.” (Ibid.)

Defendant is 90 years old and currently lives at a senior assisted living residence. (Guy Decl. ¶ 2.) She has no recollection of ever being served either personally or by mail. (Id. ¶ 3.) Defendant has submitted a proposed answer to Plaintiff’s complaint as required under section 473. (Isaacs Decl., Ex. A.) Plaintiff has not opposed the present motion or submitted contrary evidence demonstrating proper service on Defendant. Thus, the Court credits Defendant’s evidence and the motion to set aside default is granted.