Judge: Daniel M. Crowley, Case: 20STCV07354, Date: 2022-09-09 Tentative Ruling

Case Number: 20STCV07354    Hearing Date: September 9, 2022    Dept: 28

Defendant Astri Matallana’s Motion to Vacate Entry of Default

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

BACKGROUND

On February 21, 2020, Plaintiff Rachel Alcantar (“Plaintiff”) filed this action against Defendant Astri Matallana (“Defendant”) for motor vehicle negligence, general negligence and negligence per se.

On July 6, 2020, the clerk entered default against Defendant.

On June 3, 2022, Defendant filed a Motion to Vacate Default to be heard on September 9, 2022.

PARTY’S REQUESTS

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

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 approximately two years after default was entered, far exceeding the statutory six month period of time. However, the Court will evaluate the application on the basis that service was never valid.

Defendant argues that she did not live at the identified address at the time of the purported substituted service and did not receive said service of documents until January of 2022. Defendant submitted a declaration attesting that she was living at a completely different address at the time of service. As such, the Court finds service was never effectuated and vacates default.

CONCLUSION

Defendant Astri Matallana’s Motion to Vacate Entry of Default is GRANTED. 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.

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