Judge: Lynette Gridiron Winston, Case: 23PSCV02543, Date: 2024-01-09 Tentative Ruling

Case Number: 23PSCV02543    Hearing Date: January 9, 2024    Dept: 6

CASE NAME:  Gold River Holding LLC  v. Haitao Wu, et al.

Motion to Set Aside Default and Default Judgment 

TENTATIVE RULING

The Court GRANTS the motion to set aside default and default judgment. The default entered against Defendants on September 12, 2023 and the default judgment entered on September 13, 2023 are hereby set aside and vacated. The writ of possession issued on September 14, 2023 is recalled and quashed. Defendants are ordered to file their Answer to Complaint within 5 calendar days.

              Defendants are ordered to give notice of the Court’s ruling within five calendar days of this order. 

BACKGROUND

This is an unlawful detainer action. On August 21, 2023, plaintiff Gold River Holding LLC (Plaintiff) filed this action against defendants Haitao Wu, Ying Lu (collectively, Defendants) and Does 1 through 10 for unlawful detainer. 

On September 12, 2023, default was entered against Defendants. On September 13, 2023, default judgment for possession was entered in favor of Plaintiff and against Defendants. 

On November 20, 2023, Defendants filed a motion to set aside default and default judgment. The motion is unopposed. 

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

               Defendants seek to set aside the default and default judgment on the grounds that they were never personally served. They contend that the location where they were purportedly served was a locked door that obviously was not in use at the time service was purportedly effected in this case. (Wu Decl., ¶¶ 2-8; Lu Decl., ¶¶ 2-8.) 

               The Court finds Defendants have presented sufficient evidence to establish that they did not actually receive service of the summons and complaint. (See Code Civ. Proc., § 473.5, subd. (a).)[1] The Court also finds that Defendants’ 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 Id.) The Court further notes that Plaintiff did not oppose Defendants’ motion to set aside, which the Court construes as a tacit admission that the motion is meritorious. (Holden v. City of San Diego (2019) 43 Cal.App.5th 404, 418; C. Opposing the Motion—and Rebutting the Opposition, Cal. Prac. Guide Civ. Pro. Before Trial Ch. 9(I)-C, ¶ 9:105.10.) Finally, the law favors adjudication of disputes on their merits. (Lasalle v. Vogel (2019) 36 Cal.App.5th 127, 134-135.) 

 Based on the foregoing, the Court will grant the motion to set aside the default entered against Defendants on September 12, 2023 and the default judgment entered on September 13, 2023. 

CONCLUSION

 The Court GRANTS the motion to set aside default and default judgment. The default entered against Defendants on September 12, 2023 and the default judgment entered on September 13, 2023 are hereby set aside and vacated. The writ of possession issued on September 14, 2023 is recalled and quashed. Defendants are ordered to file their Answer to Complaint within 5 calendar days.

               Defendants are ordered to give notice of the Court’s ruling within five calendar days of this order.