Judge Thomas Falls, Case 21PSCV00188 2022-10-31 Tentative Ruling

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On July 13, 2021, default was entered against Defendant. That same day, default judgment was entered.

On October 6, 2022, Defendant filed the instant motion to set aside/vacate default and/or default judgment (“motion”). That same day, he filed his answer.

Defendant brings forth the motion pursuant to CCP section 437(b). The discretionary relief provisions of section 473, subdivision (b) provide in pertinent part:

“The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.[1]

I was never personally served with the complaint. I received some papers pertaining to this matter in the mail.[2] I summarily glanced through the papers, but since I have been dealing with several health issues related to my legs, back and neck I prioritized my medical appointments and treatments. When I felt well enough to read the papers in this matter I started to correspond with the plaintiff in the hope of resolving the matter. Unfortunately, the parties were never able to reach an agreement and I neglected to file an answer. As I was dealing with my health issues this matter completely slipped my mind and I only became aware that judgment had been entered when I received the Notice of Entry of Judgment in or around mid to late April 2022.

Here, though Defendant has not provided case law for his position nor more details about his health concerns, the court finds excusable neglect due to his ongoing ailment. (See Kesselman v. Kesselman (1963) 212 Cal.App.2d 196, 207-208 [For the proposition that Evidence that the defendant was seriously ill, or feeble, or unable to understand that he was being served with process, is sufficient to justify discretionary relief under section 473(b).) As such, this is not merely a matter of Defendant being busy or forgetting about the lawsuit. (Seee Andrews v. Jacoby (1919) 39 Cal.App. 382, 383 [holding that “the mere fact that the client is busy and occupied with other affairs is never held to constitute an excuse for his neglect to answer a summons” wherein the defendant “was very busy closing up his business affairs and preparing to move his family.”].) After all, Defendant attempted to actively participate in the case by settling the matter. Put differently, had Defendant made no attempts at all, then the court would not find excusable neglect.

[1] Here, the notice of entry of judgment was served on April 16, 2022. Six months from April 16, 2022 is October 16, 2022. The motion to set aside default judgment was filed on October 6, 2022. Consequently, the motion is timely because it was filed within the 6-month time limit, allowing the court to exercise its discretion in vacating the entry of judgment. (See Cruz v. Fagor America, Inc. (2007) 146 Cal.App.4th 488, 495.)

[2] On one hand Defendant argues he was served but then he was not served. As “[t]he return of a process server...establishes a presumption,” Plaintiff’s Proof of Service of Summons is are presumed to be true. Moreover, contrary to Defendant’s argument that he was not served, Defendant attempted to settle the matter, indicating that he was served. To the extent that Defendant argues service by mail is improper, a plaintiff is also authorized to simply mail a defendant a copy of the summons and complaint, with a request to acknowledge receipt thereof. (Code Civ. Proc., § 415.30.) Therefore, to the extent that Defendant asks to the court to set aside default judgment for the failure to properly serve Defendant, Defendant has offered no evidence thereof.

[3] That said, the court notes that a pro-per litigant is treated like any other party and is entitled to the same, but no greater consideration than other litigants and attorneys. (See, e.g., Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-47.) While the court exercises its discretion to overlook some deficiencies in Defendant’s motion, such a favorable outcome may not always result because in doing so, “no judgment against a self-represented party would ever be final.” (Burnete v. La Casa Dana Apartments (2007) 148 Cal.App.4th 1262, 1264.)