Judge: Richard Y. Lee, Case: 30-2022-01256587, Date: 2023-08-10 Tentative Ruling

Defendant Angelica Xavier moves for an order setting aside the default and default judgment entered against her pursuant to CCP §§473.5, 473(b), 473(d) and Civil Code §1788.61.

Under CCP §473.5(a), a party may move to set aside a default or default judgment and seek leave to defend on the grounds that service of the summons had not resulted in actual notice in time to defend the action.  The notice of motion must be served and filed within a reasonable time, but no later than: (i) two years after entry of a default judgment against it; or (ii) 180 days after service on it of a written notice that the default or default judgment has been entered, whichever earlier.  (CCP §473.5(a).)  The motion must also be accompanied by an affidavit showing under oath 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 the party shall serve and file with the notice a copy of the answer, motion, or other pleading proposed to be filed in the action. (CCP §473.5(b).) 

The court may set aside the default and/or default judgment and permit the party to defend the action if it finds that the motion was timely and that the moving party’s lack of actual notice of the action was not caused by avoidance of service or inexcusable neglect.  (CCP §473.5(c).) 

Section 473.5 is designed to provide relief where there has been proper service of the summons but the defendant nevertheless did not find out about the action in time to defend.  (Weil & Brown, Cal. Practice Guide:  Civil Procedure Before Trial (The Rutter Group 2020) ¶ 5:420.)  Typically, those are cases in which service was made by publication.  (Ibid.) 

Here, the default judgment was entered on 1/20/23. The instant motion was filed 3/23/23. The motion is therefore timely under CCP §473.5.

The proof of service on file reflects that Xavier was served by publication in September 2022.

In support of her motion, Xavier provides a declaration in which she testifies that she first learned of the lawsuit near the end of September 2022 when Plaintiff’s attorney contacted her attorney and requested that he accept service on her behalf. (Xavier Decl. ¶7.) Xavier also declares that she appeared remotely at the 9/29/22 Case Management Conference in this case. (Id.)

Default entered against Xavier nearly two months later, on 11/18/22. (ROA 46.)

As Xavier has testified that she had actual knowledge of the action weeks before her default was taken, she does not meet the criteria for relief under CCP §473.5. Xavier has provided no evidence to support a finding that she did not have actual notice in time to defend the action.

Xavier also moves for relief under CCP §473(b). CCP §473(b) permits a court to grant relief from a judgment, dismissal, order or other proceeding taken against a party on the grounds of “mistake, inadvertence, surprise or excusable neglect.”  Generally, there are two avenues to such relief under CCP §473(b).  (Leader v. Health Industries of Am., Inc. (2001) 89 Cal.App.4th 603, 615.) First, a court may grant discretionary relief upon the moving party’s showing of mistake, inadvertence, surprise or excusable neglect. (Id. at 615-616.)  Second, where the defaulting party’s attorney files an attorney affidavit of fault the relief is mandatory. (Id.)

A motion seeking relief under Section 473(b) must be brought within 6 months of entry of the judgment.  (CCP §473(b).)  A proposed answer or other responsive pleading is to be filed with the motion for relief. (Id.)

Here, the motion is timely. However, as to Xavier’s “mistake, inadvertence, surprise or excusable neglect,” she only provides her own declaration in which she contends that the court entered a default judgment even though the default prove-up hearing was scheduled for 2/2/23. (Xavier Decl. ¶9.) Xavier declares that but for the above facts, she would have filed her proposed answer.

Xavier’s contention is not persuasive. Default was entered on 11/18/22, so Xavier could not have filed an answer, even had the default prove-up hearing proceeded in February rather than January. Xavier would have had to file a motion to set aside the entry of default. Xavier does not explain why that was not done at any time in the intervening two months before the default judgment was entered, even though she had appeared at a case management conference in September. Xavier also appears to concede that she monitored the case through the court’s website. (Id. at ¶14.) She does not claim that she was unaware of the entry of default.

Civil Code § 1788.61 allows a party to set aside a default or default judgment in an action brought by a “debt buyer,” which is defined as “a person or entity that is regularly engaged in the business of purchasing charged-off consumer debt for collection purposes, whether it collects the debt itself, hires a third party for collection, or hires an attorney-at-law for collection litigation.” Here, there is no allegation or evidence that the plaintiff is a debt collector; therefore, Civil Code §1788.61 is inapplicable.

Pursuant to CCP §473(d), the court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order.

Here, Xavier has not argued that there is a clerical mistake, nor has she provided any reasoned argument to support a finding that the judgment is void.

Accordingly, for the foregoing reasons, the motion is DENIED.

Plaintiff to give notice.