Judge: Gregory Keosian, Case: 23STCV04417, Date: 2023-08-22 Tentative Ruling

Case Number: 23STCV04417    Hearing Date: August 22, 2023    Dept: 61

Defendants Hyong Kwon Chong and Mi Jo Chong’s Motion to Set Aside Default is DENIED.

I.                   MOTION TO VACATE DEFAULT

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.

(Code Civ. Proc. § 473, subd. (b).)

Defendants Hyong Kwon Chong and Mi Jo Chong (Defendants) seek to vacate the defaults entered against them on July 5, 2023. Defendants submit the declaration of Hyong Kwon Chong, who states that they were never served with the complaint in this matter, and that with respect to the proofs of service indicating they were served by mail on March 10, 2023, they were not at the address indicated on that date. (Chong Decl. ¶¶ 3–4.)

Defendants’ motion cannot be granted. Although Defendants contend they were not served with the summons and complaint, their objections to service were forfeited when they appeared in this court to bring their motion to dismiss, filed on March 15, 2023, and denied on May 4, 2023. “A defendant has a right to demand that process be issued against him in the manner provided by law, but if process is not so issued and he appears generally without making objection, such appearance, being the purpose of the process, confers jurisdiction of the person and the court is empowered to act in the premises.” (Fireman's Fund Ins. Co. v. Sparks Construction, Inc. (2004) 114 Cal.App.4th 1135, 1147.) Despite the denial of this motion, Defendants failed to answer the Complaint, and default was accordingly entered against them on July 5, 2023. (See Code Civ. Proc. § 586 [describing circumstances in which a default may be entered against a party who failed to answer a complaint after their prior motion is denied].) Indeed, Defendants certainly had notice of the action when they moved to dismiss on March 15, 2023.[1]

Moreover, Defendants do not include “a copy of the answer or other pleading proposed to be filed” in the present action, should their motion be granted, as required under Code of Civl Procedure § 473, subd. (b).

The motion is therefore DENIED.