Judge: Joseph Lipner, Case: 21STCV34041, Date: 2023-11-30 Tentative Ruling

Case Number: 21STCV34041    Hearing Date: November 30, 2023    Dept: 72

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES

DEPARTMENT 72

TENTATIVE RULING

          Defendant Deborah Yearby (“Defendant”) moves to set aside entry of default in this matter.  The Court GRANTS Defendant’s motion.  Defendant is ordered to file an answer within 20 days of today.

          As an initial matter, the Court exercises its discretion to disregard the untimely opposition to this motion filed by Plaintiff Donny Adonis Ekine (“Plaintiff”).  Plaintiff filed his opposition three days before this hearing.  Plaintiff’s failure to oppose the motion is itself grounds to grant Defendant’s motion.

          In addition, even apart from Plaintiff’s failure to timely file an opposition, the Court will grant Defendant’s motion.  Defendant moves for relief from default under Code of Civil Procedure § 473.5, subdivision (a), which states:

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 judgment and for leave to defend the action.

The time deadline to bring a motion to vacate default is “180 days after service on him or her of a written notice that the default or default judgment has been entered.”  (Ibid.)  Although Plaintiff argues that Defendant knew about the default, there is no indication in the record or otherwise that Defendant received written notice that the default had been entered.  Accordingly, the motion is timely.

Defendant testifies in her declaration that she never received service of the summons and complaint.  (Yearby Decl. ¶ 7.)  In fact, she was out of town that day and no one was at home to receive service.  (Ibid.)  While Plaintiff argues that Defendant is lying, the Court finds that Defendant has provided sufficient basis for setting aside the default.

The Court’s disposition of this motion is supported by the strong public policy in favor of deciding matters on the merits.  This will lead to a more orderly and just proceeding.  This is especially true in this case, because Defendant credibly asserts confusion over the interplay between the small claims action she filed and this action that Plaintiff filed.

Accordingly, the Court vacates the default entered by the Court on June 7, 2022.  Defendant must file her answer within 20 days of today.