Judge: Nick A. Dourbetas, Case: 2020-01124638, Date: 2022-11-18 Tentative Ruling

Motion to Set Aside/Vacate Default and Judgment

Defendant Ronald Cunningham aka Ron Cunningham aka Ron A. Cunningham’s motion for relief from default and default judgment is DENIED. 

Moving party fails to provide admissible evidence to support relief on any of the stated grounds; moving party’s supporting declaration fails to comply with Code Civ. Proc., § 2015.5, and is thus of no evidentiary value.  (Kulshrestha v. First Union Commercial Corp. (2004) 33 Cal. 4th 601, 612.)  

Further, even if moving party had provided a competent declaration, his declaration does not state that “lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect.”  (Code Civ. Proc., § 473.5, subd. (b); Civ. Code, § 1788.61, subd. (b).)  Nor does moving party provide evidence that the default and default judgment were entered due to “mistake, inadvertence, surprise, or excusable neglect,” or that the judgment is void due to improper service.  (Code Civ. Proc., § 473, subds. (b), (d).)  Service by publication in a newspaper of general circulation is permissible upon certain conditions (Code Civ. Proc., § 415.50; Gov’t Code, § 6060); moving party has not shown these conditions were not met here.

Finally, the motion is untimely under Code Civ. Proc., § 473, subd. (b), which motion must be brought no later than six months after entry of default and/or default judgment.  Plaintiff also provides evidence that plaintiff was served with the default judgment on 8-18-21 (Domin Decl., ¶ 23), which is more than 180 days prior to the filing of the instant motion.  Thus, the motion is also untimely under Code Civ. Proc., § 473.5, subd. (a), and Civ. Code, § 1788.61, subd. (a)(2)(B).) 

Plaintiff shall give notice.