Judge: Joel R Wohlfeil, Case: 37-2022-00011812-CU-BC-CTL, Date: 2024-06-05 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - May 29, 2024

05/31/2024  09:00:00 AM  C-73 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Joel R. Wohlfeil

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Civil - Unlimited  Breach of Contract/Warranty Motion Hearing (Civil) 37-2022-00011812-CU-BC-CTL REID VS NICHOLS [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Set Aside Judgment, 05/03/2024

The Motion (ROA # 57) of Defendant DAVID NICHOLS dba DAVID NICHOLS CUSTOM BUILDER ('Defendant') to vacate entry of default and default judgment, is CONDITIONALLY GRANTED.

The objections (ROA # 63) of Plaintiffs DANA REID and JILL JENSEN ('Plaintiffs') are OVERRULED IN PART and SUSTAINED IN PART. The objections are SUSTAINED except as follows: nos. 3, 4 and 8 are OVERRULED.

As discussed below, this ruling is made on the condition that Defendant must immediately file and serve an amended and corrected declaration of Brenda Verzosa.

Defendant is ordered to file and serve a responsive pleading within twenty (20) days of this hearing.

'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(a).

'Upon a finding ... that the motion was made within the period permitted by subdivision (a) and that his or her lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect, it may set aside the default or default judgment on whatever terms as may be just and allow the party to defend the action.' Id. at (c).

Paragraphs 2, 3 and 6 of the declaration of Brenda Verzosa appear to mistakenly refer to the purported date of substitute service as April 27. 2022. In fact, the proof of service indicates substitute service occurred on April 24, 2022, and the document was signed by the process server on April 27, 2022. The opposition does not raise this defect such that it appears to be a typographically error that can be cured via submission of an amended and corrected declaration.

Assuming this error is corrected, then the Court finds that the Verzosa declaration and the admissible portions of the Nichols declaration are sufficient to evidence lack of actual notice that was not caused by avoidance of service or inexcusable neglect. The Motion is granted on this basis.

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3120079 CASE NUMBER: CASE TITLE:  REID VS NICHOLS [IMAGED]  37-2022-00011812-CU-BC-CTL The Court sets a Case Management Conference on Wednesday June 5, 2024 at 8:30 AM in D 73.

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3120079