Judge: Nathan R. Scott, Case: Hoseini v. Robbiano, Date: 2022-11-18 Tentative Ruling

Motion to Vacate

Defendant Daniela Alejandra Robbiano’s motion to vacate is granted.

The 2/22/22 entry of default is vacated. 

Defendant shall have leave to separately file her proposed answer (Ex. B) within 5 days.  Separate filing is critical to ensure the answer is properly indexed in the court’s electronic filing system.

A “‘default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void.’  [Citation.]  As mentioned above, under section 473, subdivision (d), the court may ‘set aside a default judgment which is valid on its face, but void, as a matter of law, due to improper service.’”  (Kremerman v. White (2021) 71 Cal.App.5th 358, 371.) 

“The law favors judgments based on the merits. . . .  in this area doubts must be resolved in favor of relief, with an order denying relief scrutinized more carefully than an order granting it.”  (Lasalle v. Vogel (2019) 36 Cal.App.5th 127, 134.)

Defendant has adequately shown she was not served with the summons and complaint.  (See 8/12/22 Mot. & Robbiano decl.)  She denies being served and plausibly explains how she learned about the lawsuit. 

Plaintiff has not offered contrary evidence other than the proof of service, which was not signed by a registered process server and thus triggers no presumption of proper service.  (See Evid. Code, § 647; see also 2/22/22 proof of service.)

The clerk shall give notice.

Default Prove-Up Hearing

The hearing is taken off calendar.

The clerk shall give notice.