Judge: Joel R Wohlfeil, Case: 37-2022-00021176-CU-MC-CTL, Date: 2023-09-29 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

DEPT.:

EVENT DATE:

EVENT TIME:

HALL OF JUSTICE

TENTATIVE RULINGS - September 27, 2023

09/29/2023  09:00:00 AM  C-73 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Joel R. Wohlfeil

CASE NO.:

CASE CATEGORY:

EVENT TYPE:

CASE TITLE: CASE TYPE:

Civil - Unlimited  Misc Complaints - Other Motion to Dismiss 37-2022-00021176-CU-MC-CTL VOYTILLA VS BHULLAR [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Set Aside Default, 06/22/2023

The Motion (ROA # 30, 35, 36) of Defendant SUKH BHULLAR ('Defendant') for an order setting aside the default and default judgment, if any, in favor of Plaintiff JORDAN VOYTILLA ('Plaintiff'), is GRANTED.

The proposed Answer attached to this Motion is deemed filed and served as of the date of this hearing.

The clerk is instructed to file the Answer as a separate document with its own Register of Action number.

Defendant's evidentiary objections (ROA # 39) are OVERRULED.

'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.' Code Civ. Proc. 473.5(a).

The Motion must 'be accompanied by an affidavit showing under oath that the party's lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect. The party shall serve and file with the notice a copy of the answer, motion, or other pleading proposed to be filed in the action.' Id. at (b).

The Judicial Council comments following this section state, in part: 'At least four facts must be shown by such defendant in his motion: (1) He received, through no inexcusable fault of his own, no actual notice of the action in time to appear and defend, and had not made a general appearance in the action. (2) A default judgment had been entered against him by the court. (3) He acted with reasonable diligence in serving and filing the notice of motion to set aside the default or default judgment .... (4) That he has a meritorious defense.' The electronic court file indicates Defendant Bhullar was served via publication of summons on September 9, 2022. Default was entered against this Defendant on October 17, 2022. The declaration of Defendant Bhullar indicates that Plaintiff's multiple attempts at service and subsequent publication of summons did not provide actual notice prior to the entry of default. Defendant's declaration states he found out about the case after a public records search in May of 2023. This explanation is sufficient.

There is no evidence that Defendant Bhullar intentionally avoided nor inexcusably neglected service.

Given the procedural history of this action, Defendant has acted with reasonable diligence.

Calendar No.: Event ID:  TENTATIVE RULINGS

3007706