Judge: Stephen I. Goorvitch, Case: BC706720, Date: 2023-02-16 Tentative Ruling

Case Number: BC706720    Hearing Date: February 16, 2023    Dept: 39

David Mora, et al. v. Ramon Mora, et al.

Case No. BC706720

Motion to Set Aside Default

            Plaintiff Davida Mora, aka David Mora Esparza (“Plaintiff”) filed this action for quiet title, cancellation of deed, fraud, accounting, partition, and exemplary damages on May 18, 2018.  The complaint named two defendants: Ramon Mora and Salvador Casillas.  The defendants were served, and defaults were entered on October 30, 2018.  On August 6, 2019, the Court (Feffer, J.) issued a default judgment, ordering as follows: (1) The quit claim deed recorded on July 21, 1993 under Instrument No. 93-1399122 is void and canceled; (2) Plaintiff shall receive a total of $800,000 in damages from Defendant Ramon Mora; (3) Plaintiff shall receive a total of $2 in damages from Defendant Salvador Casillas; and (4) Defendant Ramon Mora shall provide a full accounting from the date the property was purchased to the date of Judge Feffer’s order.

            Now, Defendant Ramon Mora (“Defendant”) moves to set aside the default and default judgment.  To the extent Defendant seeks relief under Code of Civil Procedure section 473(b), the motion is untimely.  (See Code Civ. Proc., § 473, subd. (b); Pulte Homes Corp. v. Williams Mechanical, Inc. (2016) 2 Cal.App.5th 267, 273.)  However, Defendant seeks relief under Code of Civil Procedure section 473(d) and 473.5, arguing that he was not properly served.  Under Code of Civil Procedure section 473.5, the Court may vacate a default “[w]hen service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him.”  (Code Civ. Proc., § 473.5.)  The phrase “actual notice” means “genuine knowledge of the party litigant” and does not include imputed notice. (Tunis v. Barrow (1986) 184 Cal.App.3d 1069, 1077.) 

            Defendant relies on his own declaration, which states that he did not learn of the judgment against him until he saw a for sale sign on the real property at issue in this case.  (Declaration of Ramon Mora, ¶ 11.)  Defendant further states that no one named Ana Mora (“Mora”), on whom Plaintiff purportedly served Defendant via substituted service, ever lived at Defendant’s residence where Plaintiff claims Plaintiff served Defendant.  (Declaration of Ramon Mora, ¶ 10.)  Defendant relies on a declaration from Alma Mora stating that she was never served with the summons and complaint in this matter.  (Declaration of Alma Mora, ¶ 5.)  Plaintiff does not oppose the motion and advances no evidence to contradict this record.

            Based upon the foregoing, the Court orders as follows:

1.         The Court grants Defendant Ramon Mora’s motion to set aside the default judgment.  The default judgment shall remain against Defendant Salvador Casillas.

2.         Plaintiff has filed an identical action against Ramon Mora and Alma Mora, which is Case Number 20STCV34300.  Therefore, based upon the stipulation of the parties, the Court dismisses Defendant Ramon Mora from Case Number BC706720 based upon the parties’ stipulation that Plaintiff may pursue those cause of action in Case Number 20STCV34300.

3.         The Court’s clerk shall provide notice.