Superior Court of California 

County of Los Angeles 

Department 78 

¿ 

 

I. BACKGROUND 

Plaintiffs Malik Mills and Jeanette Spears (collectively, “Plaintiffs”) filed this action against defendants J & A Windows & Door, Inc., Jose Salvatierra, individually and d/b/a J & A Windows and Door, Tereza Curry, The North River Insurance Company, SureTec Insurance Company (Doe 1), and Does 2-50 for (1) Breach of Contract, (2) Fraud, (3) Civil Code 8422(b), (4) Business & Professions Code 6125, (5) Indemnity on Contractor Bond, and (6) Discipline Against Contractor’s License. 

On June 18, 2024, Plaintiffs obtained entry of default against Jose Salvatierra, individually and d/b/a J & A Windows and Door (“Defendant”). 

On August 2, 2024, Defendant filed the instant motion to set aside the entry of default pursuant to Code Civ. Proc. § 473.5(a). 

On August 8, 2024, Plaintiffs filed an opposition. 

Any reply was due on or before October 15, 2024; none has been filed to date. 

 

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 Civ. Proc. § 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.) “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).) 

 

III. DISCUSSION 

Defendant moves solely on the grounds of section 473.5 to set aside the entry of default obtained against him. The focus of section 473.5 is whether the defaulting party obtained actual notice in time to defend the action.¿“Discretionary relief based upon a lack of actual notice under section 473.5 empowers a court to grant relief from a default judgment where a valid service of summons has not resulted in actual notice to a party in time to defend the action.”¿(Anastos v. Lee (2004) 118 Cal.App.4th 1314, 1319.)¿“A party seeking relief under section 473.5 must provide an affidavit showing under oath that his or her lack of actual notice in time to defend was not caused by inexcusable neglect or avoidance of service.”¿(Ibid.)¿The term “actual notice” means “genuine knowledge of the party litigant.”¿(Rosenthal v. Garner (1983) 142 Cal.App.3d 891, 895.)¿¿ 

Here, the proof of service provides that Defendant was personally served with the summons and complaint on January 3, 2024 at 1:45 p.m. at the location 3750 West El Segundo Boulevard, Hawthorne, CA 90250. (Proof of Service, May 30, 2024.) Defendant’s affidavit declares that his place of business is 2750 West El Segundo Boulevard, Hawthorne, California 90250, and that he was not there on January 3, 2024. (Salvatierra Decl. ¶¶3-4.) Defendant attests that he had never been served, and that he would have responded had he been served. (Id. ¶¶ 2, 5.) 

In opposition, Plaintiffs rely on Sheehan v. Sullivan (1899) 126 Cal 189 to argue that Defendant bears a heavy burden of proof. Sheehan is not relevant to this matter. Sheehan involved the enforcement of a trust, wherein the quote cited by Plaintiff related to the standard of evidence necessary in the execution of a mortgage. That case has no bearing on this issue of whether or not the Court should set aside the default. 

“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.” (Taliaferro v. Taliaferro (1963) 217 Cal.App.2d 216, 220.) Indeed, the filing of a proof of service creates a rebuttable presumption that service was proper. (Floveyor Internat., Ltd. v. Superior Court (1997) 59 Cal.App.4th 789, 790.) When a defendant challenges the court’s personal jurisdiction on the ground of improper service of process, the burden is on the plaintiff to prove the existence of jurisdiction by proving the facts requisite to an effective service. (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413.) Thus, it is Plaintiffs’ burden to demonstrate that personal service was effectuated on Defendant at 3750 West El Segundo Boulevard, Hawthorne, CA 90250. 

Plaintiffs contend that Defendant identifying the business address as 2750 West El Segundo instead of 3750 West El Segundo is an attempt to mislead the court and obfuscate issues, because 3750 West El Segundo is the business address listed with the California Secretary of State and California State Contractors License Bureau. (Simons Decl. Exhs. 7-10.) Further, Plaintiffs aver that Defendant e-mailed Plaintiffs’ counsel on January 7, 2024 requesting a copy of the lawsuit (Simons Decl. Exh. 11) and acknowledged the contents of the lawsuit on March 28, 2024 (Simons Decl. Exh. 10.). 

The Court finds that Plaintiffs have met their burden that service was proper. As Plaintiffs aver, Defendant’s affidavit does not state that he was not at 3750 West El Segundo on the purported date of service. Further, Plaintiffs have provided sufficient evidence that the business address is 3750 West El Segundo, and that Defendant had actual notice of the lawsuit pursuant to the emails he sent to Plaintiffs’ counsel. As such, even under a liberal construction of the statute, Defendant has failed to demonstrate that he had actual lack of notice of the lawsuit in time to defend that was not caused by inexcusable neglect or avoidance of service under section 473.5. (See Rosenthal, supra, 142 Cal.App.3d at 895.) 

 

IV. CONCLUSION 

Accordingly, the Motion To Set Aside Default is DENIED without prejudice. 

 

Moving Party is ordered to give notice. 

 

DATED: October 21, 2024 

__________________________ 

Hon. Michelle C. Kim 

Judge of the Superior Court 

 

PLEASE TAKE NOTICE: 

• Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement. 

• If a party intends to submit on this tentative ruling, the party must send an email to the court at SMCDEPT78@lacourt.org with the Subject line “SUBMIT” followed by the case number. The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting. 

• Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument. You should assume that others may appear at the hearing to argue. 

• If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court. After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave.