2012-00124884-CL-CL

Quickclick Loans LLC vs. Regina Brewer

Nature of Proceeding:   Motion to Set Aside Default and Default Judgment

Filed By:  Brewer, REgina

Defendant’s motion for relief from default and default judgment pursuant to CCP §
473.5 is GRANTED.

Plaintiff attempted substitute service on June 3, 2012.  In fact, Defendant did not live at
the address where substitute service was attempted.  Defendant did not receive notice
of the action, and on January 11, 2013, the court entered a default judgment against
her.  Because Defendant did not receive actual notice of the lawsuit, and because she
did not avoid service or commit any excusable neglect, she is entitled to relief form the
default and default judgment.

In reaching its conclusion, the court rejects Plaintiff’s argument that the motion is
untimely.  A defendant must serve a motion under CCP § 473.5 by the earlier of two
years from entry of default judgment or 180 days after service of written notice that
default judgment has been entered.  Defendant filed the motion within two years of
entry of judgment.  Plaintiff, however, argues that, because Defendant did not file the
motion within 180 days of service of the application for entry of default and default
judgment had been entered, her motion is time-barred.

The problem with Plaintiff’s argument is that Plaintiff served the application–not notice
of entry of judgment–at the same address it attempted substitute service of the
summons and complaint, i.e., an address that was not Defendant’s.  In Plaintiff’s view,
service of notice at the incorrect address triggered the 180-day period in CCP § 473.5
because service was made at Defendant’s last known address and thus complied with
CCP § 587.  Section 587 requires a plaintiff applying for entry of default to state that
service of the application was made upon the defendant’s lawyer or, if known, at the
defendant’s last known address.  The defendant’s nonreceipt of such notice of
application for entry of default is not itself grounds to set aside a judgment.  (See CCP
§ 587.)  The 180-day period in CCP § 473.5(a), however, is triggered upon service of
notice that default or default judgment was entered.  Because the evidence is that
Plaintiff did not receive written notice of entry of default or default judgment, and
instead that she only learned of the judgment by examining her credit report in or
about September 2012, the alternative two-year period creates the deadline on the
instant motion.  Because Defendant brought the motion within two years of entry of
default and default judgment, the motion is timely.

Conclusion

The motion is granted.  The default and default judgment are VACATED.

Plaintiff may file and serve her proposed answer to the complaint no later than January
3, 2014.  The clerk of the court will not file the proposed answer submitted with
the motion as an exhibit.

The minute order is effective immediately.  No formal order pursuant to CRC 3.1312 or
further notice is required.