Judge: Mark E. Windham, Case: 21STLC01312, Date: 2024-01-17 Tentative Ruling
Case Number: 21STLC01312 Hearing Date: January 17, 2024 Dept: 26
Interinsurance Exchange v. Keough, et al.
VACATE DEFAULT AND DEFAULT JUDGMENT;
QUASH SERVICE
(CCP § 473.5)
TENTATIVE RULING:
Defendant Douglas M. Keough’s
Motion to Vacate Entry of Default and Default Judgment is DENIED.
ANALYSIS:
On February 16, 2021, Plaintiff Interinsurance Exchange of
the Automobile Club (“Plaintiff”) filed the instant action for automobile
subrogation against Defendants James Douglas Keough (“Defendant James”) and
Douglas M. Keough (“Defendant Douglas”). Following Defendants’ failure to file
responsive pleadings, the Court entered their default on May 17, 2021. Default
judgment was entered against Defendants on January 27, 2022. Plaintiff filed an
Order to Appear for Examination on August 21, 2023; the Order to Appear was
served on Defendant Douglas on October 10, 2023.
Defendant Douglas filed the instant Motion to Set Aside
Entry of Default on December 14, 2023. Plaintiff filed an opposition on
December 18, 2023 and Defendant Douglas replied on January 9, 2024.
Discussion
Defendant Douglas moves to vacate the entry of default pursuant
to Code of Civil Procedure section 473.5. Code of Civil Procedure section 473.5, subdivision (a), which provides:
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 is supported by a declaration by
Defendant Douglas averring that he did not have notice of the Summons and
Complaint. He declares that the proof of service indicates the Summons and
Complaint were delivered to his daughter but that he never received the papers.
(Motion, Douglas Keough Decl., ¶¶2-3.) He also declares that he did not try to
avoid service. (Id. at ¶6.) Defendant Douglas contends that it was not
until November 2023 that he became aware of service of the Summons and
Complaint. (Id. at ¶2.)
The opposition, however, argues that Defendant
Douglas admits that the address where he was served, 9750 Mustang Way, Shadow
Hills, California, was his residence and that numerous papers were mailed there
after service of the Summons and Complaint. These papers included (1) the
request for entry of default, mailed on May 13, 2021; (2) the request for entry
of default judgment, mailed on November 11, 2021; (3) an order of suspension of
driver’s license from the Department of Motor Vehicles, mailed on June 30,
2022; and (4) a notice of involuntary lien and a copy of the abstract of
judgment from the Los Angeles County Recorder, mailed on June 28, 2022. (Opp.,
Horn Decl., ¶¶5-8 and Exhs. A-D.) Of these three documents, however, only the request for entry of
default and request for default judgment include a proof of service
demonstrating service upon Defendant Douglas. (Id. at Exhs. A-D.)
In reply, Defendant Douglas argues that notice of
the request for entry of default is irrelevant because it does not pertain to
whether he received actual notice of the Summons and Complaint. (Reply, p.
4:15-23.) Notice of the entry of default is relevant, however, because it goes
to whether the instant Motion was brought within the statutory deadlines. The
statute requires a motion under section 473.5 be brought within a reasonable
time. The reply also does not dispute that Defendant Douglas was served with
the request for default judgment; instead it argues that no notice of the
default judgment itself was provided. If Defendant Douglas received the request
for entry of default around May 13, 2021 and the request for default judgment
around November 11, 2021, it was unreasonable to bring the instant Motion 18
months later. Defendant Douglas’ supporting declaration does not address service
of these documents specifically, but broadly contends that he was unaware of
this action until August 2023 due to a letter from the DMV. (Motion, Douglas
Keough Decl., ¶¶2-8.) No copy of this letter is attached. (Motion, Douglas
Keough Decl.)
Even if the Motion was timely brought within a
reasonable time, Defendant Douglas’ supporting declaration does not demonstrate
that his lack of notice in time to defend the action was not the result of
inexcusable neglect. No explanation is provided in his declaration as to how
the different documents mailed to his residence after the action was filed went
unnoticed. In fact, the request for entry of default against Defendant James
was also mailed to the Mustang Way address. (Request for Entry of Default, filed
05/17/21, ¶6.) Merely declaring that Defendant Douglas did not avoid service is
not sufficient to meet the statutory requirements. (See Motion, Douglas Keough
Decl., ¶6.)
Therefore, Defendant Douglas has not demonstrated
that relief is proper under Code of Civil Procedure section 473.5.
Conclusion
Defendant Douglas M. Keough’s Motion to Vacate Entry of
Default and Default Judgment is DENIED.
Court clerk to give notice.