Judge: Mark H. Epstein, Case: 22SMCV02025, Date: 2024-04-29 Tentative Ruling

Case Number: 22SMCV02025    Hearing Date: April 29, 2024    Dept: I

This is a motion to vacate the default.  On its regular merits, the court would be inclined to grant the motion. 

There is an issue as to service.  The claim is that the service address is not the correct address—it is not where defendant was or worked at the time (according to the defense).  Accordingly, the argument goes, there was no service and the default needs to be vacated.  The opposition suggests that the proof of service is enough to establish proper service and that the address was in fact correct.  Given the court’s strong public policy favoring a trial on the merits, the court would be inclined to grant and allow a trial.  But there are some problems.  First, there is no answer included in the motion, as is required by the statute.  Second, defendant does not suggest a potentially meritorious defense.  Third, the default was entered in August 2023.  The motion was filed in March 2024, about eight months after the default was entered.  The court has some doubt as to the delay, which plaintiff has not explained.  The court will inquire as to these subjects.  The bottom line is that for technical reasons, the court must DENY the application, but the court would prefer to GRANT the application and deem the complaint served today with an answer to be filed and served by Wednesday at 3:00 pm.

The court notes that Hicks has filed a notice of non-receipt of opposition.  The court will inquire about that, given that the court has received an opposition.