Judge: Layne H. Melzer, Case: 2019-01058498, Date: 2022-10-27 Tentative Ruling
DEF Matthew Guerrero
Motion to Set Aside/Vacate Default and Judgment
The court denies Defendant/Debtor Mathew Guerrero’s Motion to set aside/vacate the 8/1/19 Default and 8/19/19 Judgment as to Plaintiff/Creditor Grassy Sprain Group, Inc.’s Complaint.
The Motion is now properly noticed and opposed. (See ROA 73).
Defendant moves to vacate the default and Judgment on several grounds, none of which are successful.
Defendant may seek discretionary relief from default under CCP § 473(b) on grounds of “mistake, inadvertence, surprise, or excusable neglect”. The motion for discretionary relief must be filed within 6 months after the clerk's entry of default. The motion is ineffective if filed thereafter, even if it is within 6 months after entry of the default judgment (these are separate procedures. Where relief is sought from a court order enforcing a procedural time limit, the six-month period starts to run from the date the court enters the order (rather than from an earlier date on which the deadline is raised in opposition papers). [Lee v. Wells Fargo Bank, N.A. (2001) 88 CA4th 1187, 1199-1200.]
The court entered Default on 8/1/19 and Judgment on 8/19/19. (ROA 20, 32.) Here, more than 6 months has passed and this Motion is untimely under CCP §473(b).
After expiration of the 6-month period, defendant may obtain relief by showing “lack of notice” of the proceedings pursuant to CCP § 473.5. But relief must be sought within 2 years of the default judgment or 180 days after service of a written notice that the default judgment has been entered, whichever is earlier. [CCP § 473.5(a)]. Here, it does not appear a notice of entry of judgment was filed, but 2 years from 8/19/19 would be 8/19/21. This Motion was filed over a year after that on 9/7/22. (ROA 58).
Thus, the Motion is untimely pursuant to CCP §473.5.
Where service of summons has not resulted in actual notice to a defendant in time to defend an action brought by a debt buyer (a person or entity that has bought consumer debt for collection purposes) under the Fair Debt Buying Practices Act (Civ. C. § 1788.50 et seq.), a motion for relief can be brought within 6 years after entry of default or default judgment or 180 days after the first notice of the action, whichever is earlier. (Id.)
Here, the Complaint alleges that “Plaintiff is a debt buyer, pursuant to California Civil Code §1788.58(a)(1).” (Compl., ¶4.) Thus, this statute is applicable.
The Proof of Service says that the Summons and Complaint was sub-served on 4/27/19 at Defendant’s residence on a co-tenant at 7182 Fenway, Ave., Apt. 3, Westminster, CA 92683. (ROA 16) There is a declaration of due diligence showing three prior service attempts. (Id.) The Summons and Complaint was thereafter mailed to the same address on 4/29/19. (Id.)
Defendant testifies in a signed declaration that he did not live at the address where he was allegedly sub-served: 1782 Fenway Ave. Apt. 3, Westminster, C 92683. (Guerrero Decl., ¶7.) He says that the apartments at this address are designated by letters, not numbers. (Id.) He does testify that on the date purportedly sub-served, he was living at 24134 Dhalia Way, Lake Elsinore C 92532. (Id.)
Defendant provides a copy of his lease dated February 1, 2019, which is month to month. (Guerrero Decl., ¶7, Ex. B.) But this does not indicate where he was living in April of 2019.
The Westminster address is not the one on the Loan Agreement. The Loan Agreement lists a Huntington Beach address, which Plaintiff’s Counsel tried but it was vacant. (See ROA 24.)
However, in opposition, Plaintiff provides testimony of the process server whom actually sub-served Defendant at the Westminster address.
Bryan Canas, testifies that he confirmed that Defendant resided at the address served in Westminster. He says in relevant part,
“I visited this address [the Westminster one], determined that the apartment was Apt. B rather than 3, and confirmed with the building manager next door in Apt. C that Mathew Guerrero resided in B.”
(Canas Decl., ¶3; See also Ex. B.)
He also testifies that he always asks the resident in the home to confirm that the defendant resides at the property or receives mail there and does not sub-serve unless the answer is yes. (Canas Decl., ¶3.)
But even assuming arguendo that the court believed Defendant’s testimony, Defendant waited too long to bring this Motion.
Defendant testifies that he did not learn about this case until April 18, 2022 when his wages were garnished. (Guerrero Decl., ¶8.) His Motion was filed less than the mandated 180 days from that notice. (See ROA 58)
However, Plaintiff’s Counsel testifies that on October 1, 2019, his office levied all accounts of Defendant Guerrero at Chase Bank. The bank forwarded $3,205.71 to the Sheriff. Thus, over $3,000 was actually levied from Defendant’s accounts in October of 2019. This shows actual notice of this lawsuit no later than October of 2019. Defendant did not file this Motion within 180 days of October of 2019. Thus, this Motion is untimely.
Finally, Plaintiff argues that the Judgment is void because Plaintiff requested a dismissal of the Complaint on 8/14/19.
There is nothing in ELF that suggests that a dismissal was filed. Rather, on 8/14/22, Plaintiff dismissed the Doe Defendants. (ROA 29).
Plaintiff is ordered to give notice of this Order.