Eduard D Bauer vs Steven Schoepp
Case No: 16CV05062
Hearing Date: Fri May 24, 2019 9:30

Nature of Proceedings: Motion to Set Aside Default

Tentative Ruling: The court grants defendant Steven Schoepp’s motion to set aside the default entered on January 25, 2018. Defendant shall file his answer to the complaint on or before June 3, 2019.

Background: On November 9, 2016, plaintiff Eduard Bauer filed a complaint for conversion of personal property against defendant Steven Schoepp. Plaintiff first had the sheriff attempt service at a large complex of numerous businesses and the sheriff sought more direction. Plaintiff then had the sheriff attempt service at defendant’s residence on three occasions on November 14, 15, and 16, 2017, between 1:40 p.m. and 2:50 p.m. On April 11, 2017, the court entered an order for publication of summons. Notice was published in the Montecito Journal. Plaintiff requested and the court entered defendant’s default on January 25, 2018. There is no record of notice of the default having been served on defendant. Plaintiff never sought entry of judgment.

Motion: Defendant moves to set aside the default on the ground that service did not result in actual notice to him in time to defend the action.

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.”

A motion to set aside under this statute must be accompanied by an affidavit showing the defendant’s lack of actual notice in time to defend the action was not caused by his avoidance of service or inexcusable neglect. CCP § 473.5(b).

In his declaration, defendant states that he is generally at work at the times the sheriff attempted service. He does not have a subscription to the Montecito Journal. He has not dodged or avoided service of process. He attaches a proposed answer to the complaint.

Defendant served his motion within a reasonable time. No judgment has been entered and there is no record of service of entry of default on him. Lack of service was not the result of inexcusable neglect or avoidance of service. The court grants defendant Steven Schoepp’s motion to set aside the default entered on January 25, 2018. Defendant shall file his answer to the complaint on or before June 3, 2019.