Judge: Daniel M. Crowley, Case: 19STCV16075, Date: 2023-03-09 Tentative Ruling

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Case Number: 19STCV16075    Hearing Date: March 9, 2023    Dept: 28

Defendant Brett M Oros’s Motion to Vacate Entry of Default and Default Judgment

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

 

BACKGROUND

On May 8, 2019, Plaintiffs Mary Ramos (“Ramos”) and Antonio Baker (“Baker”) filed this action against Defendant Brett M Oros (“Defendant”) for motor vehicle negligence and general negligence.

On July 1, 2020, the clerk entered default against Defendant. The Court entered default on March 23, 2022.

On September 22, 2022, Defendant filed a Motion to Vacate Default to be heard on March 9, 2023. On February 24, 2023, Plaintiffs filed an opposition. On March 2, 2023, Defendant filed a reply.

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 was never served with the complaint.

Plaintiffs request the Court deny the motion.

 

LEGAL STANDARD

CCP § 415.10 provides that “[a] summons may be served by personal delivery of the summons and of the complaint to the person to be served. Service of summons in this manner is deemed complete at the time of such delivery.” A party may also serve the complaint and summons via other statutorily authorized means, but service of both the complaint and summons is necessary. 

“We conclude California's Jurisdiction and Service of Process Act of 1969 preempted the subjects of jurisdiction and service of process and clearly rejected the rule that a defendant's general appearance after entry of a default judgment against him based upon a void service of summons retroactively makes valid that void service.” (In re Marriage of Smith (1982) 135 Cal. App. 3d 543, 545.)

CCP § 473.5 provides that if service of a summon has not resulting in actual notice to a party, said party may file a notice of motion to set aside default within a reasonable time. A reasonable time is considered to be either the two years after entry of default judgment or 180 days of receiving notice of default, whichever comes first. 

 

DISCUSSION

Plaintiff filed two proofs of service for this complaint. There was a proof of substituted service at 25 George Street, North Haven, CT 06473, and a proof of personal service on Wednesday, March 18, 2020, at the same address.

Defendant provided a declaration attesting that he was never personally served with the complaint and did not live at the subject address. On the date of the alleged personal service, Defendant states he was in Hartford or at his home address with his wife in Wallingford. Given that Defendant did not reside at the North Haven address, any substituted service at that address would be improper. He also provided an additional declaration stating that his mother’s boyfriend at the time of service had a similar appearance to him, potentially accounting for the mistaken identity in service. Defendant has provided a proper declaration attesting that he was never served; there is a general policy that doubts are resolved in favor of the party seeking to set aside the default. (Waite v. Southern Pacific Co. (1923) 192 Cal. 467, 470-471.) The Court grants the motion.

 

CONCLUSION

Defendant Brett M Oros’s Motion to Vacate Entry of Default and Default Judgment is GRANTED. Entry of Default and Default Judgment are vacated.

The Court sets an OSC re: Dismissal for Failure to File Proof of Service for April 7, 2023, at 8:30 a.m. in the Spring Street Courthouse.

            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.

The parties are directed to the header of this tentative ruling for further instructions.