Judge: Cherol J. Nellon, Case: 20STCV40949, Date: 2023-05-22 Tentative Ruling

Case Number: 20STCV40949    Hearing Date: May 22, 2023    Dept: 28

Having considered the moving papers, the Court rules as follows.

BACKGROUND

On October 23, 2020, Plaintiff Ivan Gutierrez (“Plaintiff”) filed this action against Defendant Mark John Franca Almera (“Defendant”) for negligence.

On October 7, 2022, the clerk entered default against Defendant. On March 2, 2023, Plaintiff filed a Request for Court Judgment to be heard on March 9, 2023.

Defendant filed an answer on March 3, 2023.

On March 17, 2023, Defendant filed a Motion to Vacate Default to be heard on April 27, 2023. The Court continued the hearing on the motion to May 22, 2023.

There is no current trial date.

PARTY’S REQUESTS

Defendant requests the Court set aside entry of default and default judgment on the basis that Defendant never received notice of the complaint.

LEGAL STANDARD

“Section 473(b) provides for both discretionary and mandatory relief. [Citation.]” (Pagnini v. Union Bank, N.A. (2018) 28 Cal.App.5th 298, 302.) The discretionary provision

grants relief based upon a party or legal representative’s mistake, inadvertence, surprise, or neglect. The discretionary provision states in pertinent part:

“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.”

The mandatory provision states in pertinent part:

“Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect. The court shall, whenever relief is granted based on an attorney’s affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties.”

“The purpose of this mandatory relief provision is to alleviate the hardship on parties who lose their day in court due to an inexcusable failure to act by their attorneys. [Citation.]” (Rodriguez v. Brill (2015) 234 Cal.App.4th 715, 723, emphasis added.)

DISCUSSION

Defendant’s application for relief was filed less than six months after entry of default, making Defendant’s application timely.

Defendant claims he was never on notice as to this suit. Service was made via substituted service on a Jane Doe who lived at Defendant’s address. Petitioner’s server’s declaration of diligence indicates that, on a previous attempt, the server spoke with an individual who advised that Defendant had been living in the Philippines since December 2019, over 2 years before

substituted service was attempted. Defendant’s declaration aligns with this statement; he only returned to the United States in August of 2022 and did not return to the served address. Thus, Defendant was not served at his dwelling home or usual place of abode, as required by substituted service. The Court finds service was never effectuated and vacates entry of default.

Default judgment has yet to be entered, and thus the Court cannot vacate default judgment. As entry of default has been vacated, the Court places the Non-Appearance Case Review Re: Status of Default Judgment off calendar.

CONCLUSION

Defendant Mark John Franca Almera’s Motion to Vacate Entry of Default and Default Judgment is GRANTED. Entry of Default is vacated.

Moving party is ordered to give notice of this ruling.

Moving Party is ordered to file the proof of service of this ruling with the Court within five days.