I. BACKGROUND 

On March 11, 2019, plaintiff Mahnaz Karimibolouri (“Plaintiff”) filed this action against defendants Julia Wegge, M.D. (“Dr. Wegge”) and Hair Free Laser Center (“HFLC”) (collectively, “Defendants”) for medical negligence arising from care and treatment rendered to Plaintiff.  

Default was obtained against Defendants on March 28, 2022, and default judgment entered on July 5, 2022.  

On December 22, 2023, Dr. Wegge filed the instant motion to set aside default and default judgment against her pursuant to CCP §§ 473(b) and 473.5 for lack of actual notice.  

Plaintiff opposes the motion, and Dr. Wegge filed a reply. 

Dr. Wegge contends she did not receive actual notice of the lawsuit, and was unaware of its existence, until she received notice of default judgment by mail on September 15, 2023. Dr. Wegge avers that lack of actual notice stemmed from shortcomings of service of process. The summons was served on an individual named “Joy Ghaemi” on June 21, 2019, whom Dr. Wegge avers is an individual unknown to her, and had no authority to accept service on her or HFLC’s behalf. Further, Dr. Wegge asserts that a public records search would have disclosed Dr. Wegge’s address and her dissociation from HFLC as of September 9, 2019. It was not until default judgment did Plaintiff serve Dr. Wegge by mail at her residential address. Dr. Wegge asserts that she promptly retained counsel upon notice of the judgment, and that default and default judgment should be set aside. 

Plaintiff conclusory argues that Dr. Wegge had notice of the instant action prior to HFLC selling its business, and that the motion to set aside is untimely because it has been more than six months from default and default judgment.  

Dr. Wegge argues Plaintiff’s opposition lacks a supporting memorandum of points and authorities, and further fails to substantively address the issues raised by Dr. Wegge in her moving papers. 

II. LEGAL STANDARD 

The Court may set aside any void judgment or order at any time. (Code Civ. Proc., § 473, subd. (d); Strathvale Holdings v. E.B.H. (2005) 126 Cal.App.4th 1241, 1249.)¿¿Code of Civil Procedure section 473.5, subdivision (a) provides, “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.”  (CCP § 473.5, subd. (a).)    

A motion to set aside under CCP § 473.5 based on lack of proper service of the action, such that defendant had no actual notice of the action in time to defend, requires the defendant to act with diligence upon learning of judgment. (Trackman v. Kenney (2010) 187 Cal. App. 4th 175, 180.) “[Citation] [“it does not require a showing that plaintiff did anything improper.... [T]he defaulting defendant simply asserts that he or she did not have actual notice]; [Citation].” (Ibid..)   

The Court agrees that Plaintiff’s opposition is defective for failing to include a memorandum of points and authorities. (CRC, rule 8.54 (a).) Additionally, the Court finds the motion timely. Aside from moving under CCP § 473(b), which indeed has a six-month timing requirement, Dr. Wegge also moves for relief under CCP § 473.5. CCP § 473.5 allows a longer period to seek relief, in which the motion must be filed within a reasonable time, to not exceed either two years after entry of default judgment or 180 days after service of written notice that default or default judgment has been entered. Here, default was entered on March 28, 2022 and default judgment entered on July 5, 2022. Dr. Wegge filed the instant motion on December 22, 2023, which is within two years of default judgment entered against her. Further, Plaintiff does not directly rebut Dr. Wegge’s contention that the history of service was improper. Dr. Wegge declares she was served notice of default judgment on September 15, 2023 at her residence, and the Court finds that Dr. Wegge promptly obtained counsel and moved for relief within a month after discovery of the action.  

These facts warrant setting aside the default entered against Dr. Wegge. (Taliaferro v. Taliaferro (1963) 217 Cal.App.2d 216, 220 [“It is the policy of the law that every case should be heard upon the merits where possible; that a motion to set aside a default is one addressed to the sound discretion of the court; that the ruling on such motion will not be reversed in the absence of a clear showing of abuse of discretion; that section 473 is a remedial provision to be liberally construed to the end that cases be disposed of upon their merits.”].)   

Accordingly, the motion is GRANTED. The March 28, 2022 default and July 5, 2022 default judgment obtained against Dr. Wegge¿are vacated. Dr. Wegge is ordered to file a separate copy of her proposed Answer within five (5) days of this Order. Considering the age of this case, the parties must move expeditiously in litigating this action.   

Moving party is ordered to give notice. 

PLEASE TAKE NOTICE: 

Dated this 12th day of March 2024