Judge Mark E. Windham, Case Number: 20STLC09464, Date: 2024-01-31 Tentative Ruling

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State Farm v. Devries, et al.

MOTION TO VACATE DEFAULT AND DEFAULT JUDGMENT

Defendant Pilar Devries’ Motion to Vacate Default and Default Judgment; and Request for Sanctions is DENIED.

On November 10, 2020, Plaintiff State Farm Mutual Automobile Insurance Company (“Plaintiff”) filed the instant action for automobile subrogation against Defendant Pilar Devries (“Defendant”). The Court granted Plaintiff’s application for service by publication on March 1, 2022 and proof of service by publication was filed on May 20, 2022. Following Defendant’s failure to file a responsive pleading, the Court entered default on October 12, 2022 and default judgment on December 12, 2022. Notice of entry of judgment was filed on February 10, 2023.

Defendant filed the instant Motion to Vacate Default and Default Judgment on December 28, 2023. Plaintiff filed an opposition on January 18, 2024 and Defendant replied on January 24, 2024. The Motion initially came for hearing on January 31, 2024 and was continued for further briefing. (Minute Order, 01/31/24.) On February 7, 2024, Defendant filed supplemental papers addressing relief pursuant to Code of Civil Procedure section 473.5 and on equitable grounds. Plaintiff filed a supplemental opposition on February 14, 2024.

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 supplemental papers argue that at the time of service of the Summons and Complaint, Defendant was living at 822 Euclid St., Santa Monica, California, and had been at that address since August 2021. (Motion, Supp. Devires Decl., ¶5.) No other evidence is provided in support of this address, such as utility bills or a lease agreement. As set forth in Plaintiff’s March 2022 application for publication and its supplemental opposition, however, the 822 Euclid Street address was not on file with the United States Postal Service. The addresses where Defendant received mail—from July 2021 to October 2022—were confirmed by the United States Postal Service to be 14975 Yerba Buena Road, Malibu, California and 31805 Broad Beach Road, Malibu, California. (Opp., Supp. Reese Decl., Exhs. D-H.) If Defendant lived at 822 Euclid Street starting in August 2021, it does not appear that the postal service was informed. Although Defendant makes the conclusory statement in the supplemental declaration that lack of actual notice was not caused by avoidance of service or inexcusable neglect, the above facts tell a different story. Defendant has not shown through the supplemental papers that lack of actual notice was not caused by avoidance of service or inexcusable neglect. Indeed, Defendant has not credibly shown lack of actual notice of the lawsuit given that the Summons and Complaint were mailed to both addresses on file with the postal service.

Finally, the Motion cites equitable grounds to vacate the default and default judgment, which must demonstrate that the judgment was entered due to extrinsic fraud or excusable mistake. (Citing Slusher v. Durrer (1977) 69 Cal.App.3d 747, 754.) Defendant argues in the supplemental papers that relief is warranted due to extrinsic fraud because she was served at an old address and Plaintiff was aware that the address was no longer valid. As discussed above, Defendant’s evidence that she resided at 822 Euclid Street at the time of service, and lacked actual notice of the action despite the many attempts at service at 14975 Yerba Buena Road and 31805 Broad Beach Road, is too conclusory to support the claim. Nor is there any evidence that Plaintiff was aware of this new address, as Defendant claims. (Supp. Motion, p. 8:13-16 [citing Supp. Devires Decl., ¶¶5-6].) For the foregoing reasons, the Court finds Defendant is not entitled to relief pursuant to Code of Civil Procedure section 473.5 or on equitable grounds.

Defendant Pilar Devries’ Motion to Vacate Default and Default Judgment; and Request for Sanctions is DENIED.