Judge: Steven A. Ellis, Case: 20STCV03845, Date: 2024-01-05 Tentative Ruling

Case Number: 20STCV03845    Hearing Date: January 5, 2024    Dept: 29

Motion to Set Aside Default and Default Judgment filed by Defendant Jasmine Garcia

Tentative

The motion is GRANTED.

Background

On January 30, 2020, Interinsurance Exchange of the Automobile Club (“Plaintiff”) filed a complaint against Jasmine Garcia (“Defendant”) and Does 1 through 10.  Defendant’s default was entered on October 15, 2021, and a default judgment was entered on May 18, 2022.

On March 13, 2023, Defendant filed this motion to set aside the default and the default judgment.  On March 17, 2023, Plaintiff filed its opposition to the motion. On December 28, 2023, Defendant filed her reply.

Discussion

As a threshold matter, the Court notes that the basis for Defendant’s motion is less clear than would be ideal.  Taking into account all of the evidence and argument, the Court concludes that the motion is made, at least in part, under Code of Civil Procedure section 473.5.  Indeed, Plaintiff argues the merits of the motion (at least in part) under section 473.5 in its opposition, and in her reply Defendant argues that section 473.5 provides a basis for the relief she seeks.

Section 473.5 applies when service of a summons and complaint is made properly but does not result in actual notice to the defendant.  (Code Civ. Proc., § 473.5, subd. (a); see also 1 Weil & Brown, California Practice Guide: Civil Procedure Before Trial (The Rutter Group 2023), ¶¶ 5:420-421.)  A motion for relief under section 473.5 must be filed “within a reasonable time” and in no event later than two years after entry of judgment.  (Code Civ. Proc., § 473.5, subd. (a).)  “Upon a finding by the court that the motion was made within the period permitted by subdivision (a) and that his or her lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect, [the court] may set aside the default or default judgment on whatever terms as may be just and allow the party to defend the action.”  (Id., subd. (c).)

Here, Defendant apparently claims that she was never served properly.  To the extent that she is challenging whether service was properly effected, however, her declaration fails to address the key point.  As is apparent from the Court’s file, the following is a partial chronology of the critical events:

·         Jan. 30, 2020.  Complaint filed.

·         Mar. 4, 2020.  Proof of service filed showing personal service of summons and complaint on Defendant at 54th Street address on February 16, 2020.

·         Aug. 30, 2021.  First Amended Complaint (“FAC”) filed.

·         Sep. 12, 2021.  Proof of service filed showing substitute service of summons and FAC on Defendant at Kingtree Avenue address on September 7, 2021.

·         Oct. 25, 2021.  Default entered.

·         May 18, 2022.  Default judgment entered.

In her declaration, Defendant states that she was not served at her 54th Street address on February 16, 2020, and that, to the contrary, she had moved to an apartment on Gower Street effective February 1, 2020.  (Garcia Decl., ¶ 3.)  But the service on February 16, 2020, is not at issue.  Plaintiff filed an FAC in 2021 and thus was required to re-serve Defendant, which Defendant did in September 2021 at the Kingtree Avenue address.  Nothing in Defendant’s declaration states or suggests that she was not living at the Kingtree Avenue address on September 7, 2021 or otherwise calls into question the validity or effectiveness of the substitute service at that address on that date.  Accordingly, on this record, Defendant has not shown that the service in September 2021 was invalid.

Nonetheless, Defendant unequivocally states that she did not receive actual notice of this lawsuit at the time of service, or at any time prior to February 11, 2023.  (Garcia Decl., ¶¶ 4, 13.)  And, as noted above, a defendant who was properly served but who did not receive actual notice (e.g., when service is by substitute service or publication) may seek relief from the default and default judgment under Code of Civil Procedure section 473.5.

Here, such relief is available to Defendant.  She did not receive actual notice in time to defend the action, the lack of actual notice was not caused by avoidance of service or inexcusable neglect, and Defendant has moved for relief within the time period provided for by statute.  In addition, the Court recognizes that there is a strong public policy in California for the resolution of litigation on the merits, rather than by procedural default.

Accordingly, Defendant’s motion is GRANTED. 

Conclusion

The Court GRANTS Defendant’s motion and SETS ASIDE the Default (entered on October 25, 2021) and the Default Judgment (entered on May 18, 2022).

The Court GRANTS Defendant leave to file the proposed Answer (attached to the moving papers) within 10 days.

The Court SETS a Trial Setting Conference in approximately 30 days.

Moving party is ordered to give notice.