SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

 

 

I. Background  

On June 8, 2018, Plaintiff Neil Webb (“Plaintiff”) filed this action against Defendant, John Halloman Ceasar, erroneously sued as John Halloman Cesar, (“Defendant”) for damages arising from an alleged motor vehicle v. pedestrian incident.   

On August 15, 2019, Plaintiff obtained Defendant’s default. On January 21, 2020, Plaintiff obtained default judgment against Defendant. 

On February 27, 2023, Defendant’s filed the instant motion to set aside the default obtained by Plaintiff pursuant to CCP §§ 418.10 and 473(d).  

As of November 13, 2023, no opposition was filed.   

 

II. Motion to Set Aside Default 

CCP § 473.5(a) states: 

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. 

 

Additionally, CC § 473(d) provides, in pertinent part, “The court may, ... on motion of either party after notice to the other party, set aside any void judgment or order.”   

In this case, Plaintiff obtained an Order for Publication on April 15, 2019, allowing Plaintiff to serve Defendant with the summons and complaint by publication in the Daily Journal, a newspaper of general circulation in Los Angeles, California.  On June 12, 2019, Plaintiff’s counsel filed proof of publication of the publisher’s affidavit from the Los Angeles Daily Journal stating that the summons and statement of damages were published on May 7, 2019, May 14, 2019, May 21, 2019, and May 28, 2019.   

Defendant argues the service by publication incorrectly spelled Defendant’s name as “Cesar” instead of the correct spelling of “Ceasar,” and that Defendant did not see the summons and notice published in the Los Angeles Daily Journal. Defendant contends he was not evading service, but instead taking care of his ailing elderly mother during the night and working during the day, and that he had no actual knowledge of the lawsuit. Defendant argues the service by publication was improper because of the misspelling of his name, and that it is Plaintiff’s burden to perfect service properly. Because service was defective due to the name misspelling, Defendant avers judgment is void on its face and that there is no time limit for filing a motion to void default judgment under section 473(d).  

Plaintiff does not oppose the motion, and thus, does not dispute that Plaintiff’s service by publication was defective, thereby voiding the defaults obtained against Defendant, and that Defendant had no notice of the action. Defendant provides he will file his Answer upon the granting of the motion, and provides a copy of the proposed responsive pleading. (Hill Decl. ¶3; Exh. C.)  

 

Based on the foregoing, Defendant’s motion to set aside the default is GRANTED.  The default entered against Defendant on August 15, 2019 and default judgment on January 21, 2020 are set aside.  Given the age of the case, the parties must move expeditiously in litigating this action. Defendant must separately file his proposed Answer within ten (10) days.  

 

Moving Defendant is ordered to give notice.   

 

 

Dated this 27th day of November, 2023