Department 30, Spring Street Courthouse

January 12, 2022

20STCV37408

Motion to Set Aside Request for Entry of Default filed by Defendant Tisa Banks Gordon

The motion is denied as moot.

Court to provide notice.

This is an action for assault, battery, and intentional infliction of emotional distress arising from a vehicle collision that took place in March 2020. Plaintiff Kisha Nelson filed her Complaint against Tisa Banks Bordon on September 30, 2020.

Plaintiff last attempted to enter default on November 16, 2022. However, default was not entered because Plaintiff failed to file proof that a statement of damages was served on Defendant. The court clerk rejected default on November 21, 2022.

Defendant filed its motion to set aside default judgment on October 28, 2022. 

Moving Arguments

Defendant filed a declaration stating she was never served court papers for this case and that she does not have a co-occupant in her home other than her children. No one named Kim Tanner could have accepted service.

Opposing Arguments

None filed

The Court may set aside any void judgment or order at any time. (Code Civ. Proc., § 473, subd. (d); Strathvale Holdings v. E.B.H. (2005) 126 Cal.App.4th 1241, 1249.)  Code of Civil Procedure section 473.5, subdivision (a) provides, “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.”  (Code Civ. Proc., § 473.5, subd. (a).)  

 

“‘A summons is the process by which a court acquires personal jurisdiction over a defendant in a civil action’ [citation], and a defendant has an absolute right to demand that process be issued against him in a manner prescribed by law.” (Mannesmann DeMag, Ltd. v. Superior Court¿(1985) 172 Cal.App.3d 1118, 1122.) “Constitutional due process requirements are satisfied where the form of service provided and employed is¿reasonably¿calculated¿to give a litigant actual notice of the proceedings and an opportunity to¿be heard.” (Crescendo Corp. v. Shelted, Inc.¿(1968) 267 Cal.App.2d 209, 213.) “‘[C]ompliance with the statutory procedures for service of process is essential to establish personal jurisdiction. [Citation.] Thus, a default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void. [Citation.]’” (Ellard v. Conway¿(2001) 94 Cal.App.4th 540, 544.)   

A defendant may file a belated responsive pleading up to the time of entry of default. (People v One 1986 Toyota Pickup (1995) 31 CA4th 254, 259–260.) An entry of default cuts off a defendant’s opportunity to file a responsive pleading unless vacated by a judge. (Parish v Peters (1991) 1 CA4th 202, 209.)

Defendant seeks to set aside default on the grounds that she never received the Complaint in this matter and the process server could not have left the papers with her co-occupant because she resides with her children and no other people. 

There was no proof of service attached to this motion showing Plaintiff was served with notice of this motion at least 16 court days before the hearing on this matter. In the future, Plaintiff must file proof of service.

The Court notes that default has not been entered against Defendant. This motion is moot because there is no default or default judgment to set aside. Defendant may file an answer or other responsive pleading and should do so now. If, in the alternative, Defendant disputes whether service of process was proper, Defendant should file a motion to quash service of summons now. Defendant should know that if Defendant does not file such a motion or otherwise answer or respond to the complaint, default may be entered against Defendant in the future.