Judge: Mark H. Epstein, Case: 23SMCV00245, Date: 2023-04-05 Tentative Ruling

Case Number: 23SMCV00245    Hearing Date: April 5, 2023    Dept: R

The motion to vacate default is GRANTED.

This is far from a slam dunk.  But that said, defendant has stated that she never got the complaint.  While it is true that her evidence is not air-tight, that is not the standard and she does present a receipt from a Trader Joe’s showing that someone with her credit card was there at the time the complaint was supposedly served.  The document (the receipt) does not have her signature, but she testifies that she was there.  Defendant need only show that service was improper by a preponderance of the evidence.  While the process server’s declaration is evidence as well, the court has trouble weighing it on this record as against defendant’s contrary evidence.  Overall, given the state’s strong preference for resolution on the merits, the court will GRANT the motion and relieve defendant from default.  Defendant has until April 6, 2023 at 3 pm to answer.  She may not demur. 

The court will set a CMC for two weeks from today (4/19/23) at which time it will set dates, including a trial date.  The court notes that because this is a UD case, the trial date will likely not be far off, at least if possession remains at issue.