Judge: Lisa R. Jaskol, Case: 23STCV15869, Date: 2025-05-20 Tentative Ruling
Case Number: 23STCV15869 Hearing Date: May 20, 2025 Dept: 28
Having considered the moving, opposition, and reply papers, the Court rules as follows.
BACKGROUND
On July 7, 2023, Plaintiff Jonathan Bowles (“Plaintiff”) filed this action against Defendants Alexandra Ainsworth (“Defendant”) and Does 1-20 for negligence.
On December 17, 2024, the clerk entered Defendant’s default.
On February 26, 2025, Defendant filed a motion for relief from default. (Although the motion also seeks relief from entry of default judgment, the Court has not entered a default judgment.) The motion was set for hearing on May 7, 2025. On April 23, 2025, Plaintiff filed an opposition. On April 25, 2025, Defendant filed a reply. The Court continued the hearing to May 20, 2025.
No trial date is currently set.
LEGAL STANDARD
Code of Civil Procedure section 473.5 provides:
“(a) 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.
“(b) A notice of motion to set aside a 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.
“(c) 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.”
(Code Civ. Proc., § 473.5.)
DISCUSSION
Defendant contends that Plaintiff did not properly serve the summons and complaint, making the default improper. According to Defendant, she was not served at the address listed on the proof of service and she has never resided at that address. Defendant asserts that she did not know about the lawsuit until her insurance company contacted her. (Ainsworth dec. ¶¶ 5-6, 8.) In addition, Defendant argues that Plaintiff’s counsel did not notify Defendant’s counsel of Plaintiff’s intention to obtain Defendant’s default before filing the default request.
In opposition, Plaintiff contends that “the defendant, Kian Weng Tan, provided their driver's license at the scene of the accident. The address listed on the defendant’s driver's license was 18401 Kingsbury St, Northridge, CA 91326. (A true and correct copy is attached as Exhibit A).” (Opposition p. 2.) However, Exhibit A is a copy of a proof of service of summons on Defendant Alexandra Ainsworth. Kian Weng Tan does not appear to be involved in this case.
Plaintiff also observes that Defendant has not submitted a proposed answer, as Code of Civil Procedure section 473.5, subdivision (b) requires. (Opposition p. 6.) In her reply, Defendant argues that she “had no legitimate way to file a responsive pleading if Defendant had no notice of the complaint filed by [Plaintiff].” (Reply p. 2.) But Code of Civil Procedure section 473.5, subdivision (b), requires a party moving to set aside a default to “serve and file with the notice [of motion] a copy of the answer . . . proposed to be filed in the action.” (Code Civ. Proc., § 473.5, subd. (b).) Defendant does not explain why, having filed a motion to vacate the default under Code of Civil Procedure section 473.5, Defendant could not file a proposed answer along with the motion under Code of Civil Procedure section 473.5, subdivision (b).
The Court denies the motion without prejudice.
CONCLUSION
The Court denies without prejudice Defendant Alexandra Ainsworth’s motion to vacate default.
Moving party is ordered to give notice of this ruling.
Moving party is ordered to file the proof of service of this ruling with the Court within five days.