Judge: Lynette Gridiron Winston, Case: 22PSCV01641, Date: 2023-11-01 Tentative Ruling

Case Number: 22PSCV01641    Hearing Date: November 1, 2023    Dept: 6

CASE NAME:  Red Target, LLC dba SCJ Commercial Financial Services, successor in interest to Financial Pacific Leasing, Inc. v. Dental Arts of Southern California, Inc.

Motion to Set Aside Default and Default Judgment

TENTATIVE RULING

            The Court GRANTS the motion to set aside default.

            Defendant Kalo is ordered to give notice of the Court’s ruling within five calendar days of this order.

BACKGROUND

This is a breach of contract case. On November 3, 2022, Plaintiff Red Target, LLC dba SCJ Commercial Financial Services, successor in interest to Financial Pacific Leasing, Inc. (Plaintiff) filed this action against Dental Arts of Southern California, Inc., George Kalo (Kalo) (collectively, Defendants) and Does 1 to 10, alleging one cause of action for breach of contract. On June 26, 2023, Plaintiff obtained entry of default judgment against Defendants. 

On September 25, 2023, Kalo filed the instant motion to set aside the default and default judgment. Plaintiff has not opposed the motion. 

LEGAL STANDARD

(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.) 

“The court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order.” (Code Civ. Proc., § 473, subd. (d).) 

DISCUSSION

Analysis

            Kalo seeks to set aside the default and default judgment on the grounds that he was never actually served. Specifically, he contends that he never received or was served with a copy of the summons and complaint, that the address listed on the process server’s proof of substituted service is not his address, and that he has been living at a different location for the past two years. (Kalo Decl., ¶¶ 2-6.) He further contends that he does not know the person, Susanna Duran, who purportedly received substitute service on his behalf. (Id., ¶ 7.) 

            The Court finds Kalo has presented sufficient evidence to establish that he did not actually receive service of the summons and complaint. (See Code Civ. Proc., § 473.5, subd. (a).) The Court also finds that Kalo’s motion is timely, as the motion to set aside was filed well within the time limits of two years from entry of default judgment or 180 days from service of written notice of entry of default judgment. (See Code of Civil Procedure section 473.5.) The Court construes Plaintiff’s lack of opposition to this motion as a tacit admission that it is meritorious. (Holden v. City of San Diego (2019) 43 Cal.App.5th 504, 418; C. Opposing the Motion—and Rebutting the Opposition, Cal. Prac. Guide Civ. Pro. Before Trial Ch. 9(I)-C, ¶¿9:105.10.) 

            Based on the foregoing, the Court GRANTS the motion to set aside default. 

CONCLUSION

 The Court GRANTS the motion to set aside default. 

            Defendant Kalo is ordered to give notice of the Court’s ruling within five calendar days of this order.