Judge: Mark E. Windham, Case: 22STLC01691, Date: 2023-12-14 Tentative Ruling

Case Number: 22STLC01691    Hearing Date: December 14, 2023    Dept: 26

Sherfield v. Las Champas Los Mozenacahua LLC, et al.

MOTION TO VACATE ENTRY OF DEFAULT AND DEFAULT JUDGMENT

(CCP § 473(b))

TENTATIVE RULING:

Defendant Guadalupe Acre’s Motion to Vacate Default and Default Judgment is DENIED.

ANALYSIS:

Plaintiff Richard Sherfield (“Plaintiff”) filed the instant action for civil rights violations against named and unnamed defendants on March 14, 2022. Defendant Guadalupe Acre (“Defendant Arce”) was added as a doe defendant on March 10, 2023. Following the lack of any responsive pleading to the complaint, the Court entered Defendant Arce’s default on May 12, 2023 and default judgment on September 1, 2023.

Defendant Arce, in pro per, filed the instant Motion to Vacate Default and Default Judgment on November 12, 2023. Plaintiff filed an opposition on November 29, 2023 and Defendant Acre replied on December 11, 2023.

Discussion

Defendant Arce moves to vacate the entry of default and default judgment pursuant to Code of Civil Procedure section 473, subdivision (b). Under this statute, an application for relief must be made no more than six months after entry of the order from which relief is sought and must be accompanied by an affidavit of fault attesting to the mistake, inadvertence, surprise or neglect of the moving party or its attorney. (Code Civ. Proc., § 473, subd. (b); English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 143.) The motion must also be accompanied by a copy of the moving defendant’s proposed pleading. (Code Civ. Proc., § 473, subd. (b).) When based on an attorney affidavit of fault, the relief sought must be granted if the statutory requirements are satisfied. (Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 612.) When brought pursuant to the provision for discretionary relief based on party fault, the request must have been filed within a reasonable amount of time.

The Motion was not timely filed within six months (182 days) of entry of default. Default was entered on May 12, 2023 but the instant Motion was not filed until November 14, 2023, which was 186 days later. The six-month deadline is jurisdictional and not subject to tolling. (Manson, Iver & York v. Black (2009) 176 Cal.App.4th 36, 42.) Therefore, Defendant Acre cannot obtain relief under Code of Civil Procedure section 473, subdivision (b). Nor does Code of Civil Procedure section 1013, subdivision (a) increase the time to file a motion under section 473 by five days. The extension of the notice period applies to service of motion papers.

Furthermore, “When a defendant challenges the court’s personal jurisdiction on the ground of improper service of process ‘the burden is on the plaintiff to prove the existence of jurisdiction by proving, inter alia, the facts requisite to an effective service.’” (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413; see also Lebel v. Mai (2012) 210 Cal.App.4th 1154, 1160.) However, a proof of service containing a declaration from a registered process server invokes a rebuttable presumption affecting the burden of producing evidence of the facts stated in the return. (Cal. Evid. Code, § 647; see American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 390.)

Here, the challenged proof of service is attested to by a registered process server, and therefore, is entitled to a presumption of truth in its contents. (Proof of Personal Service, filed 05/12/23, ¶7e.) The burden to disprove the facts stated in the proof of substitute service, therefore, falls first to Defendant Acre. The Motion is supported only by a minimal declaration from Defendant Acre stating that she was not served. (Motion, Acre Decl., ¶5.) No other information pertaining to the date, time, and location of service is mentioned to allow the Court to evaluate the credibility of this statement. (Ibid.) Therefore, Defendant Acre has not demonstrated that she was not served as stated in the proof of service filed on May 12, 2023.

Conclusion

Based on the foregoing, Defendant Guadalupe Acre’s Motion to Vacate Default and Default Judgment is DENIED.

Court clerk to give notice.