Judge Lee W. Tsao, Case Number: 23NWCV02058, Date: 2024-02-02 Tentative Ruling

Judge: Lee W. Tsao, Case: 23NWCV02058, Date: 2024-02-02 Tentative Ruling

Case Number: 23NWCV02058 Hearing Date: March 21, 2024 Dept: C

LOZA v. NGUYEN

CASE NO.: 23NWCV02058

HEARING: 03/21/24

Defendant JOSE SANCHEZ-ALVAREZ’s Motion to Set Aside Default and Default Judgment is GRANTED.

Moving Party to give Notice.

Defendant’s Request for Judicial Notice is GRANTED as to the existence of the document. (Cal. Ev. Code §452.)

Defendant’s Proposed Demurrer attached as Exhibit G to the Reply is not deemed served and filed as of the hearing date. Moving Party is ORDERED to FILE, SERVE, and RESERVE A HEARING DATE for the Proposed Demurrer within 5 court days of the Court’s issuance of this Order.

This breach of contract action was filed by Plaintiff CHRISTINA LOZA (“Plaintiff”) on January 3, 2023.

Default was entered against Defendant JOSE SANCHEZ-ALVAREZ (“Defendant”) on September 5, 2023. Default Judgment was entered against Defendant on January 23, 2024.

Defendant now moves to set aside the default under CCP §473.5.

CCP §473.5 sets the time limit as requiring the motion to be filed within a reasonable time, but in no event exceeding the earlier of: (i) two years after entry of a default judgment; or (ii) 180 days after service on the party of a written notice that a default or default judgment had been entered. (CCP §473.5(a).) “Notice of motion to set aside the 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.” (CCP § 473.5(b).)

Here, the default was entered on September 5, 2023. This motion was filed on January 19, 2024, which is within 180 days of September 5, 2023. The motion is timely.

Defendant Sanchez-Alvarez declares, under penalty of perjury, that he was no longer employed and/or associated with EXP on July 7, 2023 when the Summons was allegedly subserved onto him by leaving a copy within someone at EXP. (Sanchez-Alvarez Decl., ¶11.)

Under CCP §473.5, the Court may set aside a default or default judgment if “(1) [defendant] received through no inexcusable fault of his own, no actual notice of the action in time to appear and defendant, and had not made a general appearance; (2) a default or default judgment has been entered against him by the court; (3) he acted with reasonable diligence in serving and filing the notice of motion to set aside the default or default judgment; and (4) he has a meritorious defense.” (CCP §473.5.)

The policy of hearing cases on their merits is well-established. (See, e.g., Berman v. Klassman (1971) 17 Cal.App.3d 900.) Given the liberality associated with Motions to Set Aside Defaults, the Court finds the declarations of Defendant Sanchez-Alvarez sufficient to warrant to relief. The law favors trials on the merits. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980.) The Court finds adequate grounds to allow Defendant the opportunity to defend themselves on the merits of this action.