Judge: David A. Hoffer, Case: 30-2021-1223900, Date: 2022-10-31 Tentative Ruling
The Motion to “Set Aside Default Judgment” filed by moving party Defendant Evelyn Estrada (“Defendant”) is GRANTED, as to the default entered on 5/23/22.
On the merits, the attempt to dispute jurisdiction over Defendant fails here. Under Ev. Code § 647, a registered process server's declaration of service establishes a presumption affecting the burden of producing evidence of the facts stated in the declaration. (American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 390.) That presumption applies here. (See ROA 15.) The Motion offers no evidence whatsoever to rebut that presumption, and the reply effectively abandons the argument. And, as this Motion was filed without a Motion to Quash, Defendant has submitted to this Court’s jurisdiction in any event. (See C.C.P. § 418.10(d).)
However, the Court finds that relief should be granted based on the declaration of defense counsel, which plainly reflects that the default here was the result of defense counsel’s error.
The Motion here invokes C.C.P. § 473(b) and is accompanied by an attorney's sworn affidavit which attests to facts demonstrating counsel’s fault. (Barrica Decl. ¶¶ 3-8.) As the Motion reflects, although defense counsel was retained in February 2022, defense counsel failed to attempt to file an Answer until after a default was entered in May 2022. Nor does it appear that defense counsel even contacted Plaintiff’s counsel to determine whether service had allegedly occurred – instead, defense counsel evidently just reviewed the Register in February and then in April, failed to discover that a proof of service of summons and complaint had been belatedly filed on 4/19/22, and did nothing else until default had been entered.
Under C.C.P. § 473(b), the court shall, upon a timely application for relief accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any resulting default entered against his or her client which will result in entry of a default judgment. Relief is thus mandatory here. The Motion is therefore granted under C.C.P. § 473(b), as to the request to vacate the default. Defendant is to file and serve her Answer, as reflected in Ex. D to the Barrica Decl., within 5 days.
When such relief is granted, the court shall direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties. (C.C.P. § 473(b).) Here, the Opposition requests such relief, but fails to specify the sum claimed. And Plaintiff’s fees and costs based on the default would have been minimal if Plaintiff’s counsel had reasonably agreed to set aside the default when first asked to do so on 5/31/22. (Barrica Decl. Ex. F.) The Court thus orders James T. Shott & Associates, as counsel for Defendant, to pay $250 to Plaintiff, through his counsel of record, within 30 days.
Defense counsel is ordered to give notice of this ruling.