Judge Elaine W. Mandel, Case Number: 23SMCV06063, Date: 2024-09-24 Tentative Ruling

Judge: Elaine W. Mandel, Case: 23SMCV06063, Date: 2024-09-24 Tentative Ruling

Case Number: 23SMCV06063 Hearing Date: September 24, 2024 Dept: P

Tentative Ruling

Account Management Services v. Gallardo, Case no. 23SMCV06063

Hearing date September 24, 2024

Defendant Gallardo’s Motion to Set Aside Default

Plaintiff sues for $79,435 in unpaid medical expenses as assignee of defendant Mary Gallardo’s health care provider. The complaint was filed 12/29/23. The proof of service shows substitute service on “Robert Gallardo – Son/Co Resident” on 1/11/24. After defendant failed to answer, default was entered 2/23/2024 and default judgement entered on 3/29/2024.

Defendant Gallardo filed this motion to set aside default on 8/22/2024. Defendant asserts she never received notice due to allegedly defective substitute service on her son. Defense counsel Stein’s hearsay declaration states defendant was receiving medical treatment on the date of service. Stein decl., para. 4. However, defendant provides no declaration herself, and there is no information provided as to when defendant learned of the lawsuit. Attorney Stein states he learned of the default on the court website (para. 2) but fails to provide information regarding the date he so learned.

Defendant argues (Reply, p. 3) she was not given “follow up opportunities to file a responsive pleading. There is no such statutory or other requirement, nor any explanation as to what sort of “follow up opportunities” defendant argues should have been provided to her.

Defendant asserts “the Court did not analyze Plaintiff’s cause of action with the requisite degree of care and, as a result, entered a default judgment against a Defendant who is wholly innocent and did not defraud Plaintiff.” (Reply, p. 4). Defendant also asserts “the court failed to act as a gatekeeper” in entering the default (Id.).

Defendant does not suggest what “degree of care” the court should have used, nor how the court “failed to act as a gatekeeper” in entering the properly-filed and supported default and default judgment packet (per 585b). Defendant provides no argument or authority as to why default should not have been entered when substitute service on her son was properly made and default properly entered and factually supported. Defendant has not filed a proposed answer.

Plaintiff opposes and requests $1,000 in attorney’s fees if the motion is granted.

Under Cal. Code of Civ. Proc. §473(b), the court may set aside a dismissal taken against a party through “mistake, inadvertence, surprise, or excusable neglect.” If service was never properly completed, the default is void. Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1444. Relief under §473 should be liberally granted because public policy favors resolution of disputes on the merits, rather than through technical default. E.g., Fasuvi v. Permatex, Inc. (2008) 167 Cal.App.4th 681, 685.

The court takes judicial notice of the proof of service, exhibit JN-1. Per CCP 415.20(b), substitute service is appropriate if the complaint “cannot with reasonable diligence” be personally delivered. The POS shows two failed attempts at personal service (1/6/24 and 1/8/24) before defendant’s son was substitute served on 1/11/24.

Defendant argues service was made on her son, who lives in a different house on her property. Defendant asserts she was under medical care at time of alleged service and did not learn of the default until Stein researched the case on the court’s website, but she fails to state when she learned of the lawsuit or the subsequent default.

There is no mandatory relief from default, as defendant fails to provide evidence of lack of appropriate service, surprise or excusable neglect.

Defendant also argues default was entered via surprise and requests that default be vacated at the court’s discretion under Code of Civ. Proc. §473(b).

Based upon the strong public policy in favor or adjudicating matters on their merits, rather than via default, and the lack of prejudice to plaintiff were the motion to be granted, the court exercises its discretion and grants the motion.

Plaintiff requests that the court exercise discretion under Cal. Code of Civ. Proc. §473(c) to award $1,000 in attorney’s fees for the time expended in preparing the declaration accompanying the default (3 hours at $200/hr.). Bemis decl., para. 4. Plaintiff requests an additional 3 hours of time for opposing this motion. Id.

Defendant’s motion to set aside default is GRANTED. Defendant to file a responsive pleading within 10 days. Attorney’s fees of $600 awarded (3 hours at $200/hr.) to plaintiff for the time expended in preparing the default paperwork. The court declines to award fees for opposing this motion. Payable within 30 days.