Judge: Stephen P. Pfahler, Case: 22CHCV00253, Date: 2022-08-25 Tentative Ruling

Case Number: 22CHCV00253    Hearing Date: August 25, 2022    Dept: F49

Dept. F-49

Date: 8-25-22

Case #22CHCV00253

VACATE DEFAULT

MOVING PARTY: Defendants, Todd Bernstein, et al.

RESPONDING PARTY: Plaintiff, Dale Kim

RELIEF REQUESTED

Motion to Set Aside the Default

SUMMARY OF ACTION

On May 5, 2021, Defendants Todd and Stacye Bernstein executed a $26,700 Note in favor of Plaintiff Dale Kim. The agreement required $1,000 monthly payments with a final payment of $700 due on October 1, 2023. Plaintiff alleges Defendants defaulted, thereby rendering the entire balance due and payable.

On April 14, 2022, Plaintiff filed a complaint for Breach of Promissory Note. On May 31, 2022, the clerk entered defaults against Defendants.

RULING: Granted in Part/Denied in Part.

Request for Judicial Notice: Granted.

Defendants Todd and Stacye Bernstein move to set aside the “judgment and any default” on grounds of a prematurely entered default by the clerk following substituted service of process on Toddy Bernstein. Plaintiff in opposition counters that at a minimum, the default against Stacye Rubenstein is proper, and the motion constitutes a means for delaying payment/collection on the note. Defendants in reply reiterates the lack of jurisdiction to enter the default against Todd Bernstein, and contends the “joint default” as to Stacye also renders it void.

The proofs of service filed with the court show personal service on Stacye Bernstein on April 21, 2022, and substituted service on Todd Bernstein via service on Stacye Bernstein, also on April 21, 2022. The certificate of mailing on proof of substituted service is dated April 22, 2022. The validity of the proofs of service are not in dispute—only the timing of the entry of default(s) by the clerk.

Service of a summons via substituted service is deemed complete on the tenth day after mailing. (Code Civ. Proc., § 415.20, subd. (a).) Ten days from April 22, 2022 is May 2, 2022. The time to respond to a served complaint is 30 days. Thirty days from May 2, 2022 was June 1, 2022. The entry of default on Todd Bernstein was therefore entered one day premature, and shall be set aside. (Code Civ. Proc., § 473, subd. (d).)

Defendant otherwise offers no supporting argument as to Stacye Bernstein given undisputed personal service. (Code Civ. Proc., § 415.10.) The argument in reply for the “jointly” entered default somehow rendering the default against Stacye void lacks sufficient legal authority again given the concession to valid, timely and proper service.  The motion is therefore denied as to Stacye Bernstein.

The motion is therefore denied as to Stacye Bernstein and granted as to Todd Bernstein. The default is vacated as to Todd Bernstein only. The default remains against Stacye Bernstein. Given the validity of service remains undisputed and the issue was a premature clerical entry, the court grants Todd Bernstein 10 days of this order to file a responsive pleading.

Defendants to provide notice.