Judge: Katherine Chilton, Case: 21STLC01780, Date: 2023-05-09 Tentative Ruling

Case Number: 21STLC01780     Hearing Date: May 9, 2023    Dept: 25

PROCEEDINGS:      MOTION TO SET ASIDE DEFAULT AND DEFAULT JUDGMENT

MOVING PARTY:    Defendant Michellei Cephus

RESP. PARTY:         None

MOTION TO SET ASIDE DEFAULT AND DEFAULT JUDGMENT

(CCP § 473(d), 473.5)

TENTATIVE RULING:

DENY

SERVICE: 

[   ] Proof of Service Timely Filed (CRC, rule 3.1300)                 [NOT OK]

[   ] Correct Address (CCP §§ 1013, 1013a)                                                 [NOT OK]

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b))                     [OK]

OPPOSITION:          Filed on ___________                                    [   ] Late                      [X] None

REPLY:                     Filed on ___________                                    [   ] Late                      [X] None

ANALYSIS:

I.                Background

On February 4, 2021, Plaintiff Robert Bare (“Plaintiff”) filed this action against Defendant Michellei Cephus (“Defendant”) for breach of contract for failure to pay legal fees.

Default was entered on July 13, 2021. The Court entered judgment against Plaintiff on August 4, 2022 in the amount of $4,697.21.

On February 16, 2023, Plaintiff filed this motion requesting that the Court set aside default and default judgment.

II.              Legal Standard

“Section 473(b) provides for both discretionary and mandatory relief.  [Citation.]”  (Pagnini v. Union Bank, N.A. (2018) 28 Cal.App.5th 298, 302.)  An application for relief under this section must be made no more than six months after entry of the judgment, dismissal, order, or other proceeding from which relief is sought and must be accompanied by an affidavit of fault attesting to the mistake, inadvertence, surprise or neglect of the moving party or its attorney. (Code Civ. Proc., § 473, subd. (b); English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 143.) In addition, an application for relief under this section “shall be accompanied by a copy of the answer or other pleading proposed to be filed herein, otherwise the application shall not be granted.” (Code Civ. Proc., § 473, subd. (b).) Relief under this section is mandatory when based on an attorney affidavit of fault; otherwise, it is discretionary. (Id.) When relief from default and default judgment is the attorney’s fault, the six-month period starts to run from the date of the entry of the default judgment. (Code Civ. Proc., § 473, sub. (b); Sugasawara v. Newland (1994) 27 Cal.App.4th 294, 295.)  

Courts may also set aside a void judgment. “A summons is the process by which a court acquires personal jurisdiction over a defendant in a civil action. The form of a summons is prescribed by law, and this form must be substantially observed. [Citation.] Service of a substantially defective summons does not confer jurisdiction over a party [citation] and will not support a default judgment. [Citation.]” (MJS Enterprises, Inc. v. Superior Court (1984) 153 Cal.App.3d 555, 557.) “Thus, a default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void.’ [Citation.]” (Sakaguchi v. Sakaguchi (2009) 173 Cal.App.4th 852, 858.) The trial court may set aside any void judgment or order at any time. (Code Civ. Proc., § 473, subd. (d).)  

Additionally, Courts may set aside a default or default judgment due to lack of actual notice. Code of Civil Procedure section 473.5 states:  

“(a) 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. 

(b) A notice of motion to set aside a default or default judgment and for leave to defend the action shall designate as the time for making the motion a date prescribed by subdivision (b) of Section 1005, and it shall 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. 

(c) Upon a finding by the court 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.”                 

III.            Discussion

First, the Court notes that there is no Proof of Service showing that the instant motion was properly served on Plaintiff.

Defendant argues that the judgment is void because Defendant was never personally served. Defendant also argues that she did not have actual notice. A motion for relief from a judgment valid on its face but void for improper service must be sought no later than two years after entry of default judgment. (Rogers v. Silverman (1989) 216 Cal.App.3d 1114, 1121-1122.) As there is no filed written notice that shows that the notice of judgment was served upon Defendant, Defendant had two years to bring the instant motion from the date of entry of judgment. (Code Civ. Proc., § 473.5(a).)

There is a properly filed Proof of Service that states that Defendant was personally served at 505 Ambergate Ct., Roswell GA 30076 on April 23, 2021. Additionally, there is a properly issued Summons on Complaint. As Plaintiff put a proper proof of service form into evidence, Defendant has the burden to prove that this apparently-proper proof of service form is invalid. (See Pacifica First National, Inc. v. Abekasis (2020) 50 Cal.App.5th 654, 656.)

Defendant states that she was not personally served. Defendant states that on April 23, 2021, she was not in Roswell Georgia, but was in Carson, California, signing a lease for a new apartment. Further, she states that she has not resided at this address because this house was vacant as it was undergoing renovations. However, Defendant offers no actual evidence to support these arguments that rebuts the apparently-proper proof of service that was filed. Defendant does not include a declaration attesting to these statements under penalty of perjury. Additionally, although Defendant references Exhibits, these are not attached to the motion that is filed with the Court. Thus, Defendant has not met her burden of showing that there was no proper service to rebut the presumptively valid proof of service.

Similarly, relief cannot be granted under section 473.5 because Defendant has not submitted a declaration showing lack of actual notice in time to defend the action and there is no proposed Answer field, as required. (Code Civ. Proc., § 473.5(b).)

IV.           Conclusion & Order

Defendant’s motion to set aside default and default judgment is DENIED.   

Moving party is ordered to give notice.