Judge: Michael E. Whitaker, Case: 21STCV09495, Date: 2023-03-20 Tentative Ruling

Case Number: 21STCV09495    Hearing Date: March 20, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 







March 20, 2023




Motion to Set Aside and Vacate Default and Default Judgment


Defendant John Arayi


Plaintiff Armineh Davtian




            Plaintiff Armineh Davtian (Plaintiff) sued Defendant John Arayi (Defendant) for motor vehicle and general negligence in connection with an auto accident on January 13, 2020. Plaintiff obtained a default judgment against Defendant on August 24, 2022.


            Defendant moves the Court to set aside and vacate the default and default judgment. Plaintiff opposes the motion.  Defendant replies. 




“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).)


“Upon a finding by the court that the motion was made within the period permitted by subdivision (a) and that his or her lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect, it may set aside the default or default judgment on whatever terms as may be just and allow the party to defend the action.” (Code Civ. Proc., § 473.5, subd. (c).)


Per Code of Civil Procedure section 473, subdivision (b), a court “may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” In addition, a court must vacate a default or dismissal when a motion for relief under Section 473 is filed timely and accompanied by an attorney’s sworn affidavit attesting to the attorney’s mistake, inadvertence, surprise or neglect “unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise or neglect.” (Code Civ. Proc., § 473, subd. (b).)   


The party or the legal representative must seek such relief “within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (CCP § 473(b); see Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980 [“because more than six months had elapsed from the entry of default, and hence relief under section 473 was unavailable”]; People v. The North River Ins. Co. (2011) 200 Ca.App.4th 712, 721 [motion for relief under section 473 must be brought “within a reasonable time, in no case exceeding six months”]). “The six-month limit is mandatory; a court has no authority to grant relief under section 473, subdivision (b), unless an application is made within the six-month period.”  (Arambula v. Union Carbide Corp. (2005) 128 Cal.App.4th 333, 340, citations omitted.)   


            Defendant moves to have the default and default judgment vacated and set aside under Section 473.5 or Section 473 in the alternative. The Court notes that Defendant has attached a copy of his proposed answer to the complaint. (Muench Decl., Ex. C.) Defendant contends he did not receive actual notice of the lawsuit until late November 2022, as his wife is the person who received the summons and complaint. She purportedly has limited English skills and did not provide the summons and complaint to her husband because she did not understand what they meant.


            Plaintiff opposes the motion on the grounds that Defendant’s motion is untimely under both Sections 473.5 and 473, and that Defendant has failed to demonstrate mistake, inadvertence, surprise, or excusable neglect. Defendant requests in his reply that the Court not consider Plaintiff’s opposition because it exceeds 10 pages and fails to include a table of contents and table of authorities per California Rules of Court, rule 3.1113(f). The Court notes that while Plaintiff’s opposition does fail to comply with this rule, Defendant nevertheless addressed the issues Plaintiff raised throughout the entire opposition, including those raised beyond the 10-page limit. Thus, the Court in its discretion will still consider the opposition in ruling on this motion. Defendant further contends in his reply that Plaintiff’s opposition fails to understand that substitute service is not necessarily the same as actual notice. Defendant otherwise reiterates arguments from his moving papers.


            Here, the Court finds that Defendant has timely moved for relief from default judgment under Code of Civil Procedure section 473.5, and thus will not consider Defendant’s alternate basis under Code of Civil Procedure section 473.[1]  Defendant filed the motion within two years from the date of entry of the default judgment. Plaintiff contends that her request for entry of default provided written notice to Defendant of the entry of the default. This argument fails because Plaintiff has not provided evidence of a written notice to Defendant after the default was entered. All Plaintiff has provided is a conformed copy of the request for entry of default, which is simply a copy of the request after it has been processed by the Court and does not prove that Plaintiff subsequently served it on Defendant. (Holguin Decl., Ex. C.) It is not enough for Plaintiff to have served the request for entry of default; she must also provide proof that she gave Defendant written notice that the default was entered. (Code Civ. Proc., § 473.5, subd. (a).)


            The Court further finds that Defendant has demonstrated he did not receive actual notice of the summons and complaint. Plaintiff concedes that the summons and complaint were served by substitute service on Defendant’s wife. Defendant has made it clear that his wife’s limited English skills prevented her from understanding the importance of the summons and complaint and thereby failed to provide them to Defendant.




Therefore, the Court grants Defendant’s Motion to Set Aside and Vacate Default and Default Judgment, and orders both the default and default judgment set aside under Code of Civil Procedure section 473.5. 


The Court further orders Defendant to file and serve copy of the proposed answer to the complaint on or before March 30, 2023.


In addition, the Court sets a Trial Setting Conference on May 5, 2023 at 8:30 A.M. in Department 32. 


The Clerk of the Court shall provide notice of the Court’s ruling. 



[1] The parties’ respective requests for monetary sanctions, penalties, or cost reimbursements under Section 473, subdivision (c) are therefore denied as moot.