SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

 

 

I. Background 

Plaintiff, Daniella Shoshana Gavrieli (“Plaintiff”) filed this action against Defendant Juan Carlos Cupen Miranda (“Defendant”) for damages arising out of a motor vehicle accident.  Default was entered on January 27, 2021, and default judgment entered on June 17, 2022.  

On April 25, 2023, Defendant filed the instant motion to set aside the default and default judgment.  Plaintiff opposes the motion, and Defendant filed a reply.   

 

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.”  (Code Civ. Proc., § 473.5, subd. (a).)    

“After six months from default, a trial court may still vacate a default on equitable ground even if statutory relief is unavailable.”¿ (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981.)¿ A party may obtain equitable relief from an entry of dismissal based on an extrinsic mistake when the moving party: (1) has a meritorious case, (2) articulates a satisfactory excuse for not presenting a defense to the original action, and (3) demonstrates diligence in seeking to set aside the dismissal once discovered.¿ (Id. at p. 982.)¿ 

An extrinsic mistake is broadly defined “. . . to encompass almost any set of extrinsic circumstances which deprive a party of a fair adversary hearing. It does not seem to matter if the particular circumstances qualify as fraudulent or mistaken in the strict sense.”¿(In re Marriage of Park (1980) 27 Cal.3d 337, 342.) An ‘extrinsic’ mistake means a mistake that deprived a party of the opportunity to present a claim or defense while an ‘intrinsic’ mistake is one that goes to the merits of a proceeding.¿ (In re Marriage of Stevenot (1984) 154 Cal.App.3d 1051, 1064-1065.)¿ 

A default cannot be set aside when the complaining party’s negligence contributed to the rise to the fraud or mistake.¿(See Kulchar v. Kulchar (1969) 1 Cal.3d 467, 473-474 [complaining party’s failure to investigate and assemble evidence at trial as grounds for denying equitable relief sought].)¿An extrinsic mistake may result from a disability when the disability renders the party incompetent or incapacitated such that it deprives the party from asserting a claim or defense. (See id. at pp. 471-472.) 

“‘A summons is the process by which a court acquires personal jurisdiction over a defendant in a civil action’ [citation], and a defendant has an absolute right to demand that process be issued against him in a manner prescribed by law.” (Mannesmann DeMag, Ltd. v. Superior Court¿(1985) 172 Cal.App.3d 1118, 1122.) “Constitutional due process requirements are satisfied where the form of service provided and employed is¿reasonably¿calculated¿to give a litigant actual notice of the proceedings and an opportunity to¿be heard.” (Crescendo Corp. v. Shelted, Inc.¿(1968) 267 Cal.App.2d 209, 213.) “‘[C]ompliance with the statutory procedures for service of process is essential to establish personal jurisdiction. Thus, a default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void.” (Ellard v. Conway¿(2001) 94 Cal.App.4th 540, 544.)¿¿¿ 

Courts have found that improper service constitutes extrinsic mistake in motions for equitable relief from default. (Moghaddam v. Bone (2006) 142 Cal.App.4th 283, 288.) A court must correctly weigh the parties’ assertions regarding whether service was proper and come to a conclusion regarding motions to set aside default. (Id at p. 292.) 

Code Civ. Pro. section 415.20 provides that “[i]f a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served . . . a summons may be served by leaving a copy of the summons and complaint at the person’s dwelling house, usual place of abode, usual place of business...in the presence of… a person apparently in charge of his or her…place of business…at least 18 years of age, who shall be informed of the contents thereof, and by thereafter mailing a copy of the summons and of the complaint by first-class mail.”¿ (Code Civ. Proc., § 415.20(b).)¿ 

 

III. Discussion 

Defendant moves to set aside default on the grounds that he received no notice of this action and that service was defective. In this case, the underlying default was entered on January 27, 2021, and the instant motion was filed on April 25, 2023, two years and three months after default. Relief under Code Civ. Proc., section 473.5 is not available here because default was entered against Defendant more than two years ago. However, equitable relief is still available. Plaintiff’s proof of service filed August 31, 2020 shows that the summons and Complaint were left with Ruby Miranda at 9490 Middleton Street, Palmdale, California 93551, on August 25, 2020, and a copy was mailed to the same address on the same date. Defendant submits a declaration, under penalty of perjury, that he did not reside at the Palmdale Address at the time and was living with his sister in La Quinta, California. However, notably, Defendant does not state that the Palmdale Address was not, in fact, his usual place of abode even if he was absent at the time.  

Nonetheless, although Plaintiff’s counsel declares they contacted Allstate and informed Allstate of the default, Plaintiff’s counsel did not advise Allstate of the intention to have Defendant’s default entered prior to doing so. As pointed out by Defendant, default was entered on January 27, 2021, but Plaintiff’s counsel did not attempt to reach out to Allstate until 10 months after entry of default in November 2021. “Warning and notice play a major role” in assessing whether a default should be set aside.  (Lasalle v. Vogel (2019) 36 Cal.App.5th 135.)  “Unintended defaults inevitably result in motions to overturn them (this case, exemplary in no other way, demonstrates well the resources consumed by such motions).”  (Id.)  Warning is no less meaningful when a party might be unrepresented, as a self-represented litigant, in particular, would benefit from receiving notice that his or her default will be taken.  

Pursuant to the policy favoring deposing of cases of their merits, these facts warrant setting aside the default entered against Defendant.  (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.”].) Therefore, the motion is granted in terms of setting aside the default and default judgment obtained against Defendant.  

The motion is therefore GRANTED pursuant to CCP § 473(b).  The default obtained against Defendant is set aside. Defendant is ordered to file his proposed Answer within ten (10) days.