Judge: Olivia Rosales, Case: 21NWCV00698, Date: 2022-10-11 Tentative Ruling

Case Number: 21NWCV00698    Hearing Date: October 11, 2022    Dept: SEC

JOSEPH v. HONODEL, et al.

CASE NO.: 21NWCV00698

HEARING: 10/11/22 @ 10:30 AM

#ADD-ON 1

TENTATIVE RULING

Defendants James and Marina Honodel’s motion to set aside entry of default and default judgment is GRANTED.  Defendants are ORDERED to file and serve their answers within 5 days of this order.

Moving Parties to give NOTICE.

Defendants James and Marina Honodel move to set aside entry of default and default judgment pursuant to CCP § 473.

The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.  Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.  (CCP § 473(b).)  The burden of proof on such a motion is on the moving party who must establish his position by a preponderance of the evidence.  (Luz v. Lopes (1960) 55 Cal.2d 54, 62.)

Defaults were entered against Defendants on March 29, 2022, and a default judgment was entered on July 22, 2022.

The court finds Defendants have established by a preponderance of the evidence that they were not personally served, and the attempted substituted service was defective.  James Honodel declares that he is 77 years old and retired with no place of business; his wife Marina Honodel is 83 years old, suffers from dementia, and has no place of business.  (J. Honodel Decl., ¶ 2.)  On December 28, 2021, they moved out of the address at 11728 Excelsior Drive, Norwalk, CA 90650.  (J. Honodel Decl., ¶ 5.) From December 28, 2021 through February 11, 2022, they resided at 5580 Rosario Avenue, Atascadero, California.  (Id., ¶ 6.)  On February 11, 2022, Defendants’ residence and mailing address is 9019 San Rafael Road, Atascadero, California.  (Id., ¶ 8.)  Neither Defendants were personally served with the summons and complaint.  (Id., ¶ 3.)

Although Plaintiff has filed opposing declarations, the court finds Defendants’ declarations credible, and justice favors resolution on the merits.

Accordingly, the motion is GRANTED.  Defendants are ORDERED to file and serve their Answers within 5 days of this order.