Judge: Mark E. Windham, Case: 22STLC07638, Date: 2024-01-23 Tentative Ruling

Case Number: 22STLC07638    Hearing Date: January 23, 2024    Dept: 26

Ramirez v. Reyes, et al.

VACATE DEFAULT AND DEFAULT JUDGMENT; QUASH SERVICE

(CCP §§ 418.10, 473.5)

TENTATIVE RULING:

Defendant William Reyes’ Motion to Vacate Default and Default Judgment; and Quash Service of Summons is DENIED.

ANALYSIS:

On November 10, 2022, Plaintiff Karla Ramirez (“Plaintiff”) filed the instant Complaint on Rejected Creditor’s Claim under Probate Code sections 9351 and 9354 against Defendant William Reyes (“Defendant”). Following Defendant’s failure to file a responsive pleading, the Court entered default on August 7, 2023 and default judgment on September 29, 2023. On November 1, 2023, Defendant filed the instant Motion to Vacate Default and Default Judgment; Quash Service of Summons. Plaintiff filed an opposition on December 20, 2023 and a supplemental declaration on January 5, 2024.

Discussion

Defendant moves to vacate the entry of default pursuant to Code of Civil Procedure section 473.5 which 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).)

The Motion was timely filed just one month after entry of default judgment. However, the declaration does not state that Defendant’s lack of actual notice was not caused by avoidance of service or inexcusable neglect. (Motion, Reyes Decl., ¶¶1-4.) Nor does the declaration actually state that Defendant lacked actual notice of the action. (Ibid.) Instead, the declaration only states that Defendant was not able to respond because he was not personally served with the Summons and Complaint. (Id. at ¶4.) Finally, the Motion does not attach a copy of Defendant’s proposed response to the Complaint, which is also required by the statute. The Motion and its supporting declaration, therefore, are not sufficient to demonstrate entitlement to relief under Code of Civil Procedure section 473.5.

The Motion also cites Civil Code section 1788.61 for relief. However, that statute only pertains to an “action brought by a debt buyer” and does not apply to this action. (Civ. Code, § 1788.61, subd. (a)(1).)

Conclusion

Defendant William Reyes’ Motion to Vacate Default and Default Judgment; and Quash Service of Summons is DENIED.

Court clerk to give notice.