Judge: Lee S. Arian, Case: 22STCV27584, Date: 2025-05-14 Tentative Ruling

Case Number: 22STCV27584    Hearing Date: May 14, 2025    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

Background

On August 24, 2022, Plaintiff filed the present Complaint arising from a car accident that occurred on August 14, 2020, involving Defendant Adolfo Gomez in Los Angeles County. Defendant is a citizen and resident of Mexico and was in Los Angeles on vacation at the time of the incident. Plaintiff attempted to serve Defendant at multiple addresses in the United States that were purportedly linked to him but was unsuccessful. Service was ultimately completed by publication. On October 21, 2024, default judgment was entered. Defendant now moves the Court to vacate the default judgment on the ground that he was unaware of the present lawsuit.
Legal Standard

California Code of Civil Procedure Section 473.5 provides for setting aside a default "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." (Section 473.5, subd. (a).)  A party who has not received such notice "may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action." (Ibid.)  “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.” (Ibid.) 

A notice of motion to set aside a default or default judgment “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.” (Ibid.) 

“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.” (Ibid.) 

Discussion

Defendant has satisfied the requirements of Code of Civil Procedure section 473.5. First, this motion was filed within 6 months of default judgment. Second, there is no indication that Defendant is attempting to avoid service. Defendant is a citizen and resident of Mexico with a permanent residence in Atizapan de Zaragoza since February 2020, and was only briefly present in Los Angeles at the time of the incident in August 2020, departing four days later. He was never instructed by law enforcement or any agency to remain in the United States and returned to Mexico without knowledge of any pending legal action. He believed the issues arising from the accident had been resolved in 2022 and had no reason to anticipate litigation. Defendant did not receive actual notice of the lawsuit until late 2024, when he was contacted by an attorney. Defendant was never personally served. The summons and complaint were served by publication in September 2023, at a time when Defendant was living in Mexico and unaware of the lawsuit. These facts demonstrate that his failure to appear was not caused by avoidance of service or inexcusable neglect.

Although Plaintiff filed an opposition and a declaration, the majority of the argument consists of allegations regarding Plaintiff’s efforts to serve Defendant. However, Plaintiff has not shown that any of the service attempts contradicted Defendant’s declaration or that Defendant was present at any of the United States addresses during the relevant period. Nor did Plaintiff present any evidence that Defendant was aware of this lawsuit prior to late 2024. Accordingly, the motion is granted. The default judgment is vacated, and Defendant is ordered to serve a responsive pleading within 30 days of today.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court’s website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.