Judge: Elaine W. Mandel, Case: 22SMCV02343, Date: 2023-01-24 Tentative Ruling

Case Number: 22SMCV02343    Hearing Date: January 24, 2023    Dept: P

Tentative Ruling

Playa Villas Malibu LLC v. Anderson et al., Case No. 22SMCV02343

Hearing Date January 24, 2023

Defendant Anderson’s Ex Parte Application to Set Aside Default Judgment

In this is unlawful detainer action the clerk entered default, but no default judgment has been issued. Defendant Anderson moves ex parte to set aside the default.

Anderson states she did not receive service of the complaint because at the times service was attempted, she was away from her residence and moving her father into a nursing home. See Anderson declaration. The court granted Playa Villas’ motion for service by posting and mailing on December 5, 2022. Playa Villas filed a proof of service by posting on January 12, 2023. Anderson does not explain why her absence from her residence prevented her from receiving notice upon receipt of the mailed complaint. Further, the ex parte application is premature. Since no default judgment has been entered, Anderson cannot show a likelihood of imminent irreparable harm if relief is not granted.

Nonetheless, Anderson correctly points out that there is a strong public policy in favor of resolving matters on the merits, rather than through default. Anderson now has notice of the action and wishes to defend against it. In the interest of justice and on its own motion, the court will vacate the entry of default on January 12, 2023 and allow the matter to proceed. The complaint is deemed served as of January 24, 2023. Anderson will file a timely responsive pleading per Cal. Code of Civ. Proc. §1167(a). GRANTED pursuant to the above terms.