Judge Mark E. Windham, Case 20STLC04320 2022-10-27 Tentative Ruling

Judge: Mark E. Windham, Case: 20STLC04320, Date: 2022-10-27 Tentative Ruling

Case Number: 20STLC04320 Hearing Date: October 27, 2022 Dept: 26

MOTION TO VACATE DEFAULT AND DEFAULT JUDGMENT

(CCP § 473.5)

TENTATIVE RULING:

Defendant Omar Gonzalez’s Motion to Vacate Default and Default Judgement is GRANTED. PROOF OF SERVICE OF THE ANSWER UPON PLAINTIFF UNITED FINANCIAL CASUALTY COMPANY IS TO BE FILED WITHIN 20 DAYS OF THIS ORDER.

ANALYSIS:

Plaintiff United Financial Casualty Company (“Plaintiff”) filed the instant action against Defendant Omar Gonzalez (“Defendant”) on May 20, 2020. Following Defendant’s failure to respond to the Complaint, the Court entered default on October 13, 2020, and default judgment on October 21, 2020.

Defendant filed the instant Motion to Vacate Default and Default Judgment on June 29, 2022. The Motion initially came for hearing on July 26, 2022 and was continued by the Court to allow Defendant to file supplemental papers. (Minute Order, 07/26/22.) Defendant filed supplemental papers on August 22, 2022. No opposition has been filed to date.

Discussion

The Motion is brought pursuant to Code of Civil Procedure section 473.5, subdivision, which provides in relevant part:

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.

(Code Civ. Proc., § 473.5, subd. (a).) Additionally, the motion “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.” (Code Civ. Proc., § 473.5, subd. (b).)

The Motion was timely filed less than two years after default judgment and was concurrently filed with Defendant’s Answer. The Motion is also accompanied by an affidavit in which Defendant declares that service of the Summons and Complaint did not result in actual notice of this action. (Motion, Gonzalez Decl., p. 5:3-9.) The declaration states that Defendant did not reside at the service address (3442 Santa Rosa CT, Palmdale, California) and only received notice of this action after the DMV suspended his license. (Id. at p. 5:9-18.) This is corroborated by a copy of Defendant’s rental agreement for an apartment at 18015 Beneda Lane # 101, Canyon Country, California. (Id. at Exh. B.) Prior to that, Defendant lived at 17847 Beneda Lane, Apt 7, Canyon Country, California. (Id. at Exh. C.) This evidence demonstrates that service was not accomplished at any address with which Defendant was affiliated, Defendant lacked actual notice of this action, and the lack of notice was not caused by avoidance of service or inexcusable neglect. Therefore, the Court finds that Defendant is entitled to relief under Code of Civil Procedure section 473.5.

Conclusion

Court clerk to give notice.