TENTATIVE RULING

Defendant Gilbert Azafrani’s Motion to Set Aside Invalid and Void Default; Quash Service of Summons and, Dismiss Action is GRANTED in part and DENIED in part. The default entered against Defendant Gilbert Azafrani on March 8, 2022, is set aside. In all other respects, Defendant’s motion is denied.

Defendant Gilbert Azafrani to give notice. 

REASONING

Request for Judicial Notice

Defendant Gilbert Azafrani (“Defendant”) requests judicial notice of all court records in this action. While the Court need not take judicial notice of its own case file, Defendant’s request is GRANTED pursuant to Evidence Code section 452, subdivision (d).

Analysis

Defendant moves the Court for an order setting aside the default entered against him on March 8, 2022, on the ground that Plaintiff Isabell Jansen (“Plaintiff”) failed to serve a statement of damages before entry of default. Defendant also moves to quash the service of summons as not properly served, and he contends that the action against him should be dismissed.

In an action to recover damages for personal injury or wrongful death, Code of Civil Procedure section 425.11, subdivision (d)(1), requires that a statement of damages must be served in the same manner as a summons on a party who has not appeared in the action, and Code of Civil Procedure section 425.11, subdivision (c), provides that “the plaintiff shall serve the statement on the defendant before a default may be taken.” Plaintiff has alleged personal injury claims in her complaint, but there is no proof of service of a statement of damages having been served before the default taken on March 8, 2022, as the docket shows only a proof of service of the summons and complaint on January 23, 2022. Given that a statement of damages was not served on Defendant before the default was taken, the default is invalid and must be set aside. Insofar as Defendant moves to quash the service of summons as improper, Defendant must file a separate motion for such relief, at which point the Court will determine whether quashing the service of summons is proper.

Accordingly, Defendant Gilbert Azafrani’s Motion to Set Aside Invalid and Void Default; Quash Service of Summons and, Dismiss Action is GRANTED in part and DENIED in part. The default entered against Defendant Gilbert Azafrani on March 8, 2022, is set aside. In all other respects, Defendant’s motion is denied.  Answer or other response due within 30 days.

The Court notes that defense counsel’s inconsistent use of font and space formatting in the motion and reply make Defendant’s motion unnecessarily difficult to read, and the Court asks counsel to limit font and spacing changes to only necessary changes. Counsel is also advised to familiarize himself with the page limits set forth in rule 3.1113(d) of the California Rules of Court, as Defendant’s reply memorandum exceeds the 10-page limit set forth in the rule.