Judge: Mark H. Epstein, Case: 22SMCV01567, Date: 2023-09-21 Tentative Ruling

Case Number: 22SMCV01567    Hearing Date: September 21, 2023    Dept: I

Plaintiff’s counsel states that counsel was in contact with counsel who represented defendant in other matters, but was ambivalent about this one.  Plaintiff claims to have served defendant directly and also defense counsel.  Defendant states that defendant never got it, and counsel says the same.  When defendant failed to answer, default (and later a default judgment) was entered.

Plaintiff initially objects to the motion as being untimely.  However, the court disagrees.  Defendant moves to set aside under CCP section 473.5.  That provision states that it may be filed within 180 days of service of notice of default or 2 years after entry, whichever comes first.  This is untimely as to the former measure if service was proper, but timely as to the second.  Plaintiff contends that process was personally served on September 29, 2022 at 7:36 pm.  But defendant contends that she was not home at the time.  Defendant provides no detail on how she knows she was not there, but the proof of service has no detail as to the person served.  Such detail might make it easier for the court to discern whether defendant is telling the truth or the process server is telling the truth.  (Or, alternatively, the process server might well not be lying but might be mistaken.)  Here, there is just no way to tell.  (And the presumption in favor of service disappears in the teeth of any contrary evidence.)  Given the strong public policy favoring resolution of claims on the merits, the court will credit defendant’s declaration.  (The court is not inclined to have oral evidence taken at this hearing, and no timely formal request to do so was filed.)  Also to the point, both defendant and her counsel state that had defendant been aware of the suit, defendant would have defended against it; that it is unlike defendant to accept a default. 

There is some debate as to whether defendant’s counsel actually represented defendant at the time of service.  Defense counsel states that she told plaintiff’s counsel that she did not, but plaintiff’s counsel states that the statement was far less clear.  But that seems neither here nor there.

The fact is that neither side really presented great evidence here.  What tips the scales is the strong public policy favoring resolution on the merits and the lack of any prejudice.  The court also notes that defendant did move quickly at least after she received the notice of lien.

Thus, although the court is somewhat troubled, it will GRANT the motion, albeit reluctantly.  Defendant will file a standalone answer by 10:00 am Monday (September 25, 2023) and will serve it personally on plaintiff’s counsel.  The right to file an answer does not include the right to file a cross-action.  Leave of court must be had for that.

The court will set a status conference in 45 days.