Judge: Elaine W. Mandel, Case: 23SMCV00264, Date: 2024-02-21 Tentative Ruling

Case Number: 23SMCV00264    Hearing Date: February 21, 2024    Dept: P

Tentative Ruling

Cathy Walker Montgomery v. Lisa Harnett, Case No. 23SMCV00264

Hearing Date February 21, 2024

Lisa Harnett’s Motion to Set Aside Default (UNOPPOSED)

Plaintiff Cathy Walker Montgomery sued defendant Lisa Harnett January 23, 2023, alleging Harnett failed to return a pearl necklace Montgomery gave her to be repaired. On May 18, 2023 Montgomery filed a declaration re: due diligence stating her process server had been unable to complete service at Harnett’s last known address despite ten attempts. On June 13, 2023 the court granted leave to serve the complaint via publication. On August 1 and 2 Montgomery filed proofs of publication, and on September 12, 2023 the clerk entered default. Defendant states she was unaware of this case until late October, when she received a document labeled “judgment” in the mail. On November 27, 2023 Harnett filed a general denial.

Harnett now moves for an order setting aside the default on the grounds that service did not result in actual notice.

Under Cal. Code of Civ. Proc. §473.5, when service of a summons has not resulted in actual notice in time to defend an action, a party may move to have a default entered against them set aside. There is a public policy in favor of resolving matters on the merits, rather than through default. E.g. Tunis v. Barrow (1986) 184 Cal.App.3d 1069, 1079.

Harnett was unaware of the action until she received the “judgment” document in the mail, and promptly retained counsel once she became aware. Harnett declaration ¶¶2, 14. This is credible, especially since the complaint was served by publication. The record indicates Harnett moved swiftly to respond once she became aware of the complaint, and her premature filing of a general denial while a default had been entered was inadvertent, the result of excusable neglect. The motion is unopposed. Harnett is prepared to defend this action. All the evidence, as well as the public policy in favor of trial on the merits, weighs in favor of granting relief. GRANTED. Default set aside, answer to be filed within 10 court days.