Judge: Lee W. Tsao, Case: 21STCV06048, Date: 2023-04-18 Tentative Ruling

Case Number: 21STCV06048    Hearing Date: April 18, 2023    Dept: C

VILLANUEVA, et al. v. SHAMEKH, et al.

CASE NO.:  21STCV06048

HEARING:  4/18/23 @ 10:30 AM

#2

TENTATIVE RULING

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

Opposing Party to give NOTICE.

Defendant Nasami moves to set aside the default and default judgment pursuant to CCP §§ 473(b), 473.5, and 473(d).

“The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.   (CCP § 473(b).)

A Default was entered against Defendant Nasimi on April 21, 2021, and a default judgment was entered on December 7, 2021. 

Defendant’s motion was filed on December 28, 2022.  The motion, brought under CCP § 473(b) is untimely.

Defendant argues that his attorney service failed to notify him of the previous hearing.  However, Defendant’s claim is with the attorney service.  Remedies based on inadvertence under CCP § 473(b) is statutorily proscribed after six months.

“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.”  (CCP § 473.5(a).)

Defendant Nasimi was personally served with the complaint and summons on March 15, 2021.  (Proof of Service filed on 3/24/2021.)  Defendant’s declaration does not dispute that he was personally served.  Therefore, the court finds that Defendant had actual notice of the action, and CCP § 473.5 is unavailable to Defendant.

The court may, on motion of either party after notice to the other party, set aside any void judgment or order.  (CCP § 473(d)).

Defendant failed to establish that the judgment was void on its face.  Defendant was timely served with the action, and judgment by default was properly entered.

Accordingly, the motion is DENIED.