Judge William Y. Wood, Case Number: 37-2023-00017704-CU-OR-NC, Date: 2024-04-12 Tentative Ruling

Judge: William Y. Wood, Case: 37-2023-00017704-CU-OR-NC, Date: 2024-04-12 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - April 10, 2024

04/12/2024 01:30:00 PM N-29 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:William Y Wood

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Civil - Unlimited Other Real Property Motion Hearing (Civil) 37-2023-00017704-CU-OR-NC MELENDEZ VS. ILIC [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Set Aside Default, 03/12/2024

Defendant Sanja Ilic's motion to set aside entry of default (ROA # 37) is granted.

Defendant moves to set aside entry of default pursuant to CCP � 473(d). CCP � 473(d) authorizes the court to set aside any void judgment or order. A judgment may be void as a matter of law for many reasons, including lack of or improper service of summons. Knowledge by a defendant of an action will not satisfy the requirement of adequate service of a summons and complaint. Renoir v. Redstar Corp.

(2004) 123 Cal.App.4th 1145, 1152-1153. CCP � 585 provides, in part, that a party is in 'default' if that party fails to respond to the complaint within the allotted time if a summons and complaint have been served on the defendant (emphasis added).

In this case, the complaint was filed on April 27, 2023. ROA # 1. The proof of service reflecting service of the summons and complaint was filed on May 30, 2023. ROA # 7.

While it is true that the defendant apparently became aware of the case in June 2023 when she filed an ex parte application for an extension of time to serve a response (ROA # 9), knowledge by a defendant of an action will not satisfy the requirement of adequate service of a summons and complaint. Renoir v. Redstar Corp. (2004) 123 Cal.App.4th 1145, 1152-1153. CCP � 585 provides, in part, that a party is in 'default' if that party fails to respond to the complaint within the allotted time if a summons and complaint have been served on the defendant. '[C]ompliance with the statutory procedures for service of process is essential to establish personal jurisdiction. [Citation.] Thus, a default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void.' Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1444.

The court is persuaded that the defendant was not served with the summons and complaint as set forth in the proof of service. The court believes that other documents were served on the defendant but not the summons or complaint. See Ilic Decl. (ROA # 38), Exhibit A [showing that the only served documents were a Notice of E-Filing Requirements, Notice of Case Assignment, ADR Information and a Stipulation to Use ADR form].

Further, the court is not persuaded that the filing of an ex parte application constitutes a general appearance thereby waiving improper service.

In addition, the law favors resolution of disputes on their merits, as opposed to resolution by default.

The court has discretion to set aside a default where the court believes it is appropriate to do so. In re Cardenas (1961) 194 Cal.App.2d 849. The court believes that it is appropriate to set aside the default in Calendar No.: Event ID: TENTATIVE RULINGS

3110581 CASE NUMBER: CASE TITLE: MELENDEZ VS. ILIC [IMAGED] 37-2023-00017704-CU-OR-NC this instance.

Therefore, the court grants defendant's request to set aside the default. Defendant shall file a response to the complaint by May 12, 2024.

This minute order constitutes the court's order. No party is required to submit a proposed order after hearing.

This is the tentative ruling for an appearance hearing (in person or remote) at 1:30 p.m. on Friday, April 12, 2023. If no party appears at the hearing, this tentative ruling will become the order of the court as of April 12, 2023. If the parties are satisfied with the court's tentative ruling or do not otherwise wish to argue the motion, they are encouraged to give notice to the court and each other of their intention not to appear, though this notice is not required.

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3110581