Judge: Gary I. Micon, Case: 23CHCV02064, Date: 2024-10-29 Tentative Ruling

Case Number: 23CHCV02064    Hearing Date: October 29, 2024    Dept: F43

Dept. F43

Date: 10-29-24

Case #23CHCV02064 , Bianca Samantha Nembhard vs. Anthony Ranch LLC, et al.

Trial Date: N/A

MOTION TO SET ASIDE/VACATE DEFAULT

MOVING PARTY: Defendant Claudia Ibarra

RESPONDING PARTY: No response has been filed yet.

RELIEF REQUESTED

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

RULING: Motion to set aside the default is denied.

SUMMARY OF ACTION

On July 14, 2023, Plaintiff Bianca Samantha Nembhard (Plaintiff) filed this action for negligence against Defendant Claudia Ibarra (Defendant) and other defendants.

On September 18, 2023, Plaintiff filed proof of personal service indicating that Defendant were served via personal service at 12:16 p.m. on September 13, 2023, at 15773 High Knoll Dr. #140, Chino Hills, CA 91709. Thereafter, default was entered against Defendant on August 7, 2024.

Defendant argues in her motion to set aside default, filed on August 26, 2024, that she did not receive actual notice of the lawsuit and did not learn of the lawsuit until August 8, 2024, when she received notice that default had been entered against her. Defendant also argues that the entry of default was the product of surprise, mistake, or excusable neglect.

No opposition has been filed as of October 15.

ANALYSIS

First, Defendant argues that the Court has the inherent power to set aside the default pursuant to CCP § 128(a)(2)-(3). Defendant also filed this motion pursuant to CCP §§ 473(b) and 473.5.

CCP § 473(b) reads as follows:

The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.

CCP § 473.5 states the following: 

(a)   When service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action. The notice of motion shall be served and filed within a reasonable time, but in no event exceeding the earlier of: (i) two years after entry of a default judgment against him or her; or (ii) 180 days after service on him or her of a written notice that the default or default judgment has been entered.

The law favors hearings on the merits, so any doubts as to the application of section 473, et seq., should be resolved in favor of the party seeking relief from default. (See Shapiro v. Clark (2008) 164 Cal.App.4th 1128, 1139-1140.)

Defendant claims that she was not aware of the lawsuit and was not served on the date that the proof of service indicates. Defendant claims she had suffered a severe back injury that greatly limited her mobility and was therefore unable to answer the door to receive service of process. (Ibarra Decl., ¶¶ 6-7, Ex. A.) As proof, she submits photocopies of invoices for physical therapy she was receiving around that time, but none show that she was receiving treatment on the day service reportedly occurred. She has therefore failed to explain how her limited mobility prevented her from making her way to answer the door, especially when her own exhibits show that she was able to leave the house on multiple occasions to receive physical therapy. She has therefore failed to rebut the presumption that service occurred.

Defendant further claims that she was not aware of the lawsuit until she was served with the notice of entry of default on August 8, 2024. (Ibarra Decl., ¶¶ 11, 13.) However, the return of process is prima facie evidence of proper service. (Los Angeles v. Morgan (1951) 105 Cal.2d 726, 731.) The proof of service filed by Plaintiff conforms with the requirements of CCP §§ 415.10 and 417.10 and is facially valid. Defendant claims that she could not have been served, yet the evidence shows that she was served, and she has failed to rebut that evidence. The Court has serious doubts about Defendant’s claimed reasons for not having been served. For that reason, her motion cannot be granted based on CCP § 473.5.

Regardless of whether she was actually, Defendant did file this motion within the time limit CCP § 473(b). The default was filed on August 7, 2024, and she filed this motion on August 26, 2024. That is clearly well within the six months required by that section.

However, while Defendant has alleged that her failure to respond to the complaint was due to her surprise, mistake, inadvertence, or excusable neglect, she has not sufficiently demonstrated that was the case. Based on the Court’s doubts regarding Defendant’s claimed lack of service, Defendant has not sufficiently demonstrated that her failure to respond was due to her surprise, mistake, inadvertence, or excusable neglect. Accordingly, her motion cannot be granted based on CCP § 473(b), either.

Defendant’s motion is denied.

CONCLUSION

Defendant’s motion to set aside and vacate entry of default is denied.

Moving party to give notice.