Case Number: 17K03802 Hearing Date: December 26, 2017 Dept: 77

Defendant Don Gamble’s Motion to Set Aside Default is GRANTED.

Background

On March 28, 2017, Plaintiff Lurie & Seltzer, LLC (“Plaintiff”) filed this breach-of-contract action against Defendants Don Gamble (erroneously sued as Donnie Gamble) (“Gamble”), Vincent Curto (“Curto”), and Regal Assets, LLC (“RAL”). Default was entered against Gamble on September 7, 2017; no default judgment has been entered against Gamble.

On October 27, 2017, Gamble filed, in pro per, a Motion to Set Aside Default (the “Motion”). On December 12, 2017, Plaintiff filed a Notice of Non-opposition, stating that it did not oppose to setting aside the entry of default against Gamble.

Discussion

A. CCP §§ 473(b) and 473.5(a)

“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.” (CCP § 473(b).)

Alternatively, CCP § 473.5(a) provides: “When 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 or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action. The notice of motion shall be served and filed within a reasonable time, but in no event exceeding the earlier of: (i) two years after entry of a default judgment against him or her; or (ii) 180 days after service on him or her of a written notice that the default or default judgment has been entered.”

The Court notes that the entry of judgment was entered against Gamble on September 7, 2017 and the instant Motion was filed on October 26, 2017, which is less than six months or 180 days apart. Thus, the Motion is timely under CCP § 473(b) and § 473.5(a).

Gamble declares that he first learned of this action on April 15, 2017 when he received a letter from civilcourtnotice.com, informing him that a lawsuit has been filed against him. (Gamble Decl. ¶ 12, Exh. 1.) Gamble declares he did not know why he was being sued because he did not know the other defendants in this action, Curto and RAL, and had never signed a contract with them. (Id. ¶¶ 4-5.) Gamble further declares that he was confused as to why he was being named in this action, so he did not proceed to defend this action. (Id. ¶ 13.) While the Court is satisfied with Gamble’s explanation of his mistake, the Court notes that Gamble has failed to submit a copy of a proposed answer as required by CCP § 473(b). Without the proposed answer being filed, the Court cannot grant the instant Motion under CCP § 473(b).

Gamble also argues that the service of the Summons and Complaint did not result in him having actual notice of the instant action. (Id. ¶ 7.) Gambles declares he never received a copy of the Summons and Complaint and did not avoid service because he did not know anyone was trying to serve him. (Id. ¶¶ 8-9.) Gamble submits the April 15, 2017 letter from civilcourtnotice.com, which was mailed to him at 9933 State Highway 70, Marysville, California 95901. (Id. Exh. 1.) Gambles also submits a notarized acknowledgment confirming that his address is at the State Highway 70 address. (Id. Exh. 2.) Gamble submits three different copies of his driver’s license, which shows that at least since January 24, 2011, when one of the driver’s licenses was issued, his address has been at the State Highway 70 address. (Id. Exh. 3.)

The Court notes that Plaintiff filed a Declaration of Non-Service, which stated that the server was unable to serve Gamble at 5097 Coral Sand Terrace on April 26, 2017, after numerous attempts. (May 25, 2017 Declaration of Non-Service.) Plaintiff also filed two different copies of Proof of Service, showing that the Summons and Complaint were mailed to Gamble at 3077 Clairemont Drive, Suite B-311, San Diego 92117 on May 5, 2017. (May 25, 2017 Proof of Service and Proof of Mailing After Service.) Because Gamble has been living at the State Highway 70 address at least since January 24, 2011, neither the Coral Sand Terrace nor the Clairemont Drive was the proper address on which to serve Gamble.

While the Court notes that Gamble received constructive notice of this action through the April 15, 2017 letter from civilcourtnotice.com, the Court of Appeals in Olvera v. Olvera (1991) 232 Cal.App.3d 32, 40–41, held that when “service of summons has not resulted in actual notice to a defendant, although the defendant has acquired actual knowledge of the action from another source, this does not preclude a defendant from seeking relief under section 473.5.” (Italics added.) In Rosenthal v. Garner (1983) 142 Cal.App.3d 891, 895, the Court of Appeals also held that constructive notice is distinct from actual notice as defined by CCP § 473.5(a). Having reviewed the evidence discussed above, the Court is persuaded that the manner in which the Summons and Complaint were served on Gamble did not result in him having “actual notice” of this action as defined by CCP § 473.5(a). (Olvera, supra, 232 Cal.App.3d at 39–40 [“‘[A]ctual knowledge’ has been strictly construed, with the aim of implementing the policy of liberally granting relief so that cases may be resolved on their merits.”].)

The Court, therefore, sets aside the entry of default against Gamble under CCP § 473.5(a). For the foregoing reasons, Gamble’s Motion is GRANTED.

Gamble must file and serve an answer or other responsive pleading within 30 days.

Trial is set on December 18, 2018.

Moving party to give notice.