Judge Mark E. Windham, Case Number: 22STLC02274, Date: 2024-09-10 Tentative Ruling

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Defendant Scott S. Streed’s Motion to Vacate Default and Default Judgment is GRANTED. THE DEFAULT ENTERED ON JUNE 3, 2022 AND DEFAULT JUDGMENT ENTERED ON AUGUST 4, 2022 ARE HEREBY VACATED. ORDER TO SHOW CAUSE REGARDING FAILURE TO FILE PROOF OF SERVICE OF THE SUMMONS AND COMPLAINT IS SET FOR DECEMBER 9, 2024 AT 9:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE.

On April 6, 2022, Plaintiff Danny Y. Yang (“Plaintiff”), in propria persona, filed the instant action for legal malpractice against Defendant Scott S. Streed (“Defendant”). Following Defendant’s failure to file a responsive pleading, the Court entered their default on June 3, 2022 and default judgment on August 4, 2022. Defendant filed the instant Motion to Vacate Default and Default Judgment on August 5, 2024. No opposition has been filed to date.

Defendant moves to vacate the entry of default pursuant to Code of Civil Procedure section 473.5, or on equitable grounds. Code of Civil Procedure section 473.5, subdivision (a) states 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).) Defendant’s Motion was timely brought within two years of the entry of default judgment and is supported by a declaration that explains that Defendant only recently learned of this action when applying for credit. (Motion, Streed Decl., ¶10.) Although Plaintiff filed a proof of personal service of the Summons and Complaint, Defendant’s declaration demonstrates that they could not have been personally served as stated therein. (Id. at ¶¶5-9.) Specifically, although the proof of service indicates that Defendant was served on April 14, 2022 in Brea, California, Defendant was in the State of Washington on that date. (Ibid.) Finally, the Motion is accompanied by a copy of Defendant’s proposed answer to the Complaint. (Id. at Exh. 3.) Defendant has demonstrated that they are entitled to relief from the default and default judgment pursuant to Code of Civil Procedure section 473.5.