Judge: Gary I. Micon, Case: 19CHCV00777, Date: 2024-09-09 Tentative Ruling

Case Number: 19CHCV00777    Hearing Date: September 9, 2024    Dept: F43

Bank of America, N.A. vs. Angelica S. Naccarati

Trial Date: N/A

MOTION TO SET ASIDE/VACATE DEFAULT

MOVING PARTY: Defendant Angelica S. Naccarati

RESPONDING PARTY: No response has been filed.

RELIEF REQUESTED

Defendant is requesting that the Court enter an order setting aside or vacating the default and default judgment entered against her.

RULING: Motion is granted.

SUMMARY OF ACTION

On September 26, 2019, Plaintiff Bank of America, N.A. (Plaintiff) filed this collections action against Defendant Angelica S. Naccarati (Defendant).

On December 16, 2019, Plaintiff filed proof of personal service indicating that Defendant was served at 2923 Montrose Ave. Apt. 101, La Crescenta, CA 91214. Thereafter, default judgment was entered against Defendant on January 6, 2020.

Defendant argues in her motion to set aside default, filed on August 12, 2024, that she never received the complaint, as she does not live at 2923 Montrose Ave. She claims that this address is where her sister used to live. Plaintiff claims that she has lived in La Canada Flintridge for the last 20 years at 4843 Ocean View Blvd., La Canada Flintridge, CA 91011. While the proof of service indicates that Defendant was served via personal service at 2923 Montrose Ave., Defendant claims that she did not become aware of this lawsuit until her employer was served with an order for garnishment in late December 2023.  Defendant’s sister submitted a declaration confirming that it was she, not the defendant, who lived at the address where service supposedly took place.  Defendant’s attorney filed his appearance in this case in January 2024.

No response has been filed by Plaintiff.

ANALYSIS

Defendant filed this motion in part pursuant to CCP Section 473 (d), which allows the court to vacate a default judgment that is void because the defendant had not been properly served with the summons and complaint.  (Ellard v. Conway (2001) 94 Cal.App.4^th 540, 544.)

The law favors hearings on the merits, so any doubts as to the application of section 473 should be resolved in favor of the party seeking relief from default. (See Shapiro v. Clark (2008) 164 Cal.App.4th 1128, 1139-1140.) Furthermore, a trial court has wide discretion to grant relief under CCP § 473(d). (Berman v. Klassman (1971) 17 Cal.App.3d 900, 909.)

Based on the declarations of defendant and her sister, it is undisputed that defendant was never served with the summons and complaint.  As a result, the default judgment is void.

CONCLUSION

Defendant’s motion to set aside and vacate entry of default and default judgment is granted. Although defendant filed a form general denial with her motion, she must re-file her answer through the court’s electronic filing system within 30 days.

Moving party to give notice.