Judge Salvatore Sirna, Case Number: 23PSCV02109, Date: 2024-01-10 Tentative Ruling

Judge: Salvatore Sirna, Case: 23PSCV02109, Date: 2024-01-10 Tentative Ruling

Case Number: 23PSCV02109 Hearing Date: February 7, 2024 Dept: G

Defendant Maria del Socorro Munoz Suarez’s Motion to Set Aside Judgment and Default

Respondent: Plaintiff Aurora Munoz Suarez

TENTATIVE RULING

Defendant Maria del Socorro Munoz Suarez’s Motion to Set Aside Judgment and Default is GRANTED. Furthermore, the Proposed Answer filed as Exhibit 1 to Defendant Maria del Socorro Munoz Suarez’s Motion is to be separately filed by Defendant as of this date.

BACKGROUND

This is a breach of contract and fraud action arising from a loan agreement. In July 2019, Plaintiff Aurora Munoz Suarez agreed to loan funds to Defendant Maria del Socorro Munoz Suarez. In exchange, Del Socorro Munoz Suarez allegedly agreed to repay double the amount borrowed within one year. Subsequently, Munoz Suarez alleges Del Socorro Munoz Suarez failed to repay the amounts owed.

On July 14, 2023, Munoz Suarez filed a complaint against Del Socorro Munoz Suarez, alleging (1) breach of contract and (2) fraud. On September 6, Munoz Suarez’s process server served Del Socorro Munoz Suarez with substitute service in San Bernardino.

On October 24, 2023, default was entered against Del Socorro Munoz Suarez. On November 16, Munoz Suarez filed an application for default judgment against Del Socorro Munoz Suarez.

On November 21, 2023, Del Socorro Munoz Suarez filed the present motion. A hearing on the present motion is set for February 7, 2024, along with a case management conference.

ANALYSIS

Del Socorro Munoz Suarez seeks to set aside the entry of default on the grounds of mistake, inadvertence, surprise, or excusable neglect. For the following reasons, the court GRANTS Del Socorro Munoz Suarez’s motion.

Legal Standard

Whenever an application for relief from default judgment is made no more than six months after entry of judgment, is in proper form, and is accompanied by the moving party’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or excusable neglect, the court may vacate any (1) resulting default entered by the clerk against the moving party or (2) resulting default judgment or dismissal entered against the moving party, unless the court finds that the default or dismissal was not in fact caused by the moving party’s mistake, inadvertence, surprise, or excusable neglect. (Code Civ. Proc., §473, subd. (b).) “The six-month time limit for granting statutory relief is jurisdictional and the court may not consider a motion for relief made after that period has elapsed.” (Manson, Iver & York v. Black (2009) 176 Cal.App.4th 36, 42 (Manson).) That “six-month period runs from entry of default, not entry of judgment.” (Id.)

Courts liberally grant motions to vacate default judgments when relief is promptly sought and the opposing party is not prejudiced as the law strongly favors resolution on the merits. (Kramer v. Traditional Escrow, Inc. (2020) 56 Cal.App.5th 13, 28.) Courts only require “slight evidence” to support vacating a default and resolve all doubts in favor of the party seeking relief. (Ibid.) However, “[t]he only occasion for the application of section 473 is where a party is unexpectedly placed in a situation to his injury without fault or negligence of his own and against which ordinary prudence could not have guarded.” (Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1206, quoting Elms v. Elms (1946) 72 Cal.App.2d 508, 513.)

Discussion

In this case, Del Socorro Munoz Suarez argues Del Socorro Munoz Suarez was never served. Generally, proof of service signed by a registered process server creates a rebuttable presumption that service was valid, and defendant must produce evidence establishing defendant was not properly served. (Evid. Code, § 647; American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 390.)

Here, Munoz Suarez provided a proof of substitute service signed by a registered process server who claimed to serve a Lucy Mendoza at a residence in San Bernardino on September 6, 2023. Prior to the substitute service, Munoz Suarez’s registered process server visited the residence on two different days but was unable to get an answer. Subsequently, Munoz Suarez’s registered process server mailed copies of the summons and Complaint to the San Bernardino property via first class mail. In response, Del Socorro Munoz Suarez failed to provide any evidence rebutting this presumption. Thus, the court finds service of Del Socorro Munoz Suarez was proper.

In a supplemental declaration, Del Socorro Munoz Suarez also suggests the default was entered as a result of mistake, inadvertence, surprise, or excusable neglect. According to the declaration, Del Socorro Munoz Suarez has gone by the name “Betty Osuna” for the last twenty years. (Del Socorro Munoz Suarez Suppl. Decl., ¶ 5.) As a result, Del Socorro Munoz Suarez believes that whoever received copies of the complaint and summons via substitute service failed to provide Del Socorro Munoz Suarez with them because they did not recognize the name. (Del Socorro Munoz Suarez Suppl. Decl., ¶ 5.) Del Socorro Munoz Suarez states Del Socorro Munoz Suarez did not have notice of the present proceedings until Del Socorro Munoz Suarez received a packet in the mail on an unspecified date. (Del Socorro Munoz Suarez Supp. Decl., ¶ 5.)

Based on these statements, the court finds Del Socorro Munoz Suarez has adequately established the entry of default was a result of surprise or inadvertence. The court also notes that the present motion was timely filed within one month of the entry of default and within three months of the service of the Complaint. Accordingly, Del Socorro Munoz Suarez’s motion is GRANTED.

CONCLUSION

Based on the foregoing, Del Socorro Munoz Suarez’s motion to set aside default is GRANTED. The proposed answer filed as Exhibit 1 to Del Socorro Munoz Suarez’s motion is to be separately filed as of this date.