Judge: Elaine W. Mandel, Case: 22SMCV02873, Date: 2023-05-19 Tentative Ruling

Case Number: 22SMCV02873    Hearing Date: May 19, 2023    Dept: P

Tentative Ruling

San Vicente Tower SPE, LLC v. Turner, Case No. 22SMCV02873

Hearing Date May 19, 2023

Defendant Turner’s Motion to Set Aside Default Judgment

A default judgment for possession of real property was entered against defendant Turner on February 24, 2023, who moves to set aside the default.

When service of a summons has not resulted in actual notice to a party in time to defend an action, defendant may serve and file a motion to set aside default within a reasonable time, not exceeding the earlier of two years after entry of default judgment or 180 days after service of notice of default. Cal. Code of Civ. Proc. §473.5. Additionally, a judgment is void if the initial complaint was not served in strict compliance with Cal. Code of Civ. Proc. §415.10 et. seq. Ellard v. Conway (2001) 94 Cal.App.4th 540.

Plaintiff’s proof of service states a process server personally served Turner with the summons and complaint at his home on Sunday, January 8 at 1:12 PM. See 1/13/2023 proof of service. Turner provides a declaration contradicting the proof of service, stating he was never served with a summons or complaint and that he is never at home at 1:12 PM. Turner decl., pg. 8.

The court is provided with two contradictory declarations regarding service. Without any basis for judging the credibility of the declarants, the court will err on the side of deciding this matter on the merits, rather than via default. Turner has shown willingness to participate in the litigation. Service is deemed complete as of May 19, 2023. Turner to answer on statutory time.

GRANTED.