Judge: Randy Rhodes, Case: 22CHCV00317, Date: 2022-12-23 Tentative Ruling

Case Number: 22CHCV00317    Hearing Date: December 23, 2022    Dept: F51

Dept. F-51 

Date: 12/23/22

Case #22CHCV00317

MOTION TO SET ASIDE ENTRY OF DEFAULT

Motion Filed: 11/3/22

MOVING PARTY: Defendant Myrna Mancia aka Mirla Mancia (in pro per) (“Moving Defendant”)

RESPONDING PARTY: Plaintiff Charles Mancia

NOTICE: OK

RELIEF REQUESTED: An order vacating the default entered against Moving Defendant on 7/29/22.

TENTATIVE RULING: The motion is granted. Moving Defendant is ordered to separately file her demurrer, which is attached to the motion, within 10 days of notice of this hearing.

BACKGROUND

This is a partition action wherein Plaintiff seeks a partition by sale of certain real property he co-owns with defendants Myrna Mancia and Carlos E. Mancia. On 5/10/22, Plaintiff filed his complaint.

On 6/20/22, Plaintiff filed his proof of service of process, indicating that he served Moving Defendant via substitute service on 6/12/22. On 7/29/22, Plaintiff filed his request for entry of default against both defendants, which was entered.

On 11/3/22, Moving Defendant filed the instant motion to set aside the 7/29/22 entry of default. No opposition has been filed to date.

ANALYSIS

Defendant requests relief from the 7/29/22 entry of default pursuant to Code of Civil Procedure section 473.5. Under the statute, the Court may set aside a default or default judgment when both of the following requirements are satisfied: (1) service of the summons has not given the defendant actual notice in time to defend the action; and (2) the defendant's lack of actual notice was not caused by the defendant's avoidance of service or inexcusable neglect. (Code Civ. Proc. § 473.5, subds. (a) and (b).)

A motion brought under Code of Civil Procedure section 473.5 must be filed within a reasonable time no later than two years after default was entered against the defendant. (Code Civ. Proc. § 473.5, subd. (a).) The motion must also be accompanied by (1) a notice thereof; (2) a sworn affidavit stating that “the party’s lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect;” and (3) “a copy of the answer, motion, or other pleading proposed to be filed in the action.” (Id., subd. (b).)

Here, the instant motion was filed about 3 months after default was entered against Moving Defendant. The motion is accompanied by a notice thereto, as well as Moving Defendant’s proposed demurrer in response to Plaintiff’s complaint. (Ex. A to Def.’s Mot.)

In her declaration, Moving Defendant states that the 6/20/22 proof of service Plaintiff filed with the court is “vague and fails to state the name or exact description of the individual of which allegedly was served.” (Decl. of Myrna Mancia, ¶ 2.) The proof of service states that substitute service was effected on Moving Defendant via a John Doe, expanding as follows:

“l delivered the documents to an individual who refused to give their name who indicated they were the co-resident. The individual accepted service in accordance with social distancing requirements (pieced the documents in a clearly visible place at least six feet away from the subject and advised the subject to retrieve them after stepping away). The individual appeared to be a Hispanic male contact [sic] 18-25 years of age with an accent. John Doe talked to me through rod-iron gate. Confirmed to be over the age of 18 years of the [sic]. Requesting I place document on floor. Sub-served.” (6/20/22 Proof of Service, ¶ 5b.)

Moving Defendant declares that she was not home at the time indicated on the proof of service, has no co-residents residing in her home, never received the subject documents, and only learned about the lawsuit when she received her mailed copy of the Notice of Entry of Default against her on or about 8/11/22. (Mancia Decl., ¶¶ 3, 5.)

Since learning about the instant action, Moving Defendant has filed a request to waive court fees, reserved a hearing date for the instant motion, filed a case management statement,  and filed a notice of related cases. (Id. at ¶¶ 7–9.) Therefore, the Court finds that Moving Defendant has sufficiently shown, by declaration under penalty of perjury, that her lack of actual notice was not caused by “her avoidance of service or inexcusable neglect.” (Code Civ. Proc. § 473.5, subd. (b).)

Accordingly, Moving Defendant has met all of the requirements of Code of Civil Procedure section 473.5. Based on the foregoing, the Court sets aside/vacates the default entered against Moving Defendant in this action. Moving Defendant is ordered to separately file her demurrer, which is attached to the motion, within 10 days of notice of this hearing.

CONCLUSION

The motion is granted. Moving Defendant is ordered to separately file her demurrer, which is attached to the motion, within 10 days of notice of this hearing.