Judge: Melissa R. Mccormick, Case: Williams v. Williams, Date: 2022-09-01 Tentative Ruling

Defendant Richard Marino Williams’s Motion to Set Aside Default

Defendant Richard Marino Williams has filed a declaration seeking to set aside the default entered against him on May 3, 2021.  The court construes defendant’s declaration as a motion to set aside the default.  Defendant appeared at the default prove-up hearing in this matter on May 5, 2022.  The court informed defendant that if he desired to appear in the action he must file and serve a motion to set aside the default.  See 5/5/22 Order.  The court also suggested defendant consult with counsel and/or seek assistance from the court’s self-help center.  For the following reasons, defendant’s motion is denied.

Defendant states in his declaration he did not know this lawsuit had been filed against him.  Defendant states he “was never served by an individual, so [he] did not realize you can serve someone through the mail.”  Defendant states he “would like to vacate this default in order to present [his] side of case.”

In light of defendant’s statement that he did not know this lawsuit had been filed, the court construes defendant’s motion as a motion to set aside a default pursuant to Civil Procedure Code section 473.5.  A motion to set aside a default must be filed within 180 days of service on defendant of a written notice that the default has been entered.  Civ. Proc. Code § 473.5(a).  The court file does not contain a proof of service showing service of a written notice on defendant that the default had been entered.  The court thus finds defendant’s motion pursuant to section 473.5 is timely.

A motion to set aside a default “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.”  Civ. Proc. Code § 473.5(b).  In addition, “[t]he party shall serve and file with the notice a copy of the answer, motion, or other pleading proposed to be filed in the action.”  Id.

Defendant’s vague and conclusory declaration does not demonstrate that defendant’s alleged lack of actual notice in time to defend the action was not caused by defendant’s avoidance of service or inexcusable neglect.  Moreover, the court file contains a proof of service showing plaintiff personally served defendant with the summons and complaint at the address on defendant’s declaration on March 30, 2021.  ROA No. 11.  Defendant has not submitted sufficient evidence from which the court can conclude defendant’s alleged lack of actual notice was not caused by defendant’s avoidance of service or inexcusable neglect.  Civ. Proc. Code § 473.5(c).  Nor did defendant serve and file with his motion a copy of an answer, motion, or other pleading proposed to filed in the action.  Id. § 473.5(b).

To the extent defendant’s motion is construed as a motion to set aside the default pursuant to section 473(b), the motion is untimely.  A motion to relieve a party from a judgment, dismissal, order or other proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect “shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.”  Civ. Proc. Code § 473(b).  Defendant filed the instant motion on May 5, 2022, more than six month after his default was entered on May 3, 2021.

Section 473(b) also states that an application under that section “shall be accompanied by a copy of the answer or other pleading proposed to be filed . . . , otherwise the application shall not be granted.”  Civ. Proc. Code § 473(b).  Defendant’s motion is not accompanied by a copy of an answer or other pleading defendant proposes to file.  

Plaintiff to give notice.