2013-00143538-CL-CL

Midland Funding LLC vs. Vera Harper

Nature of Proceeding: Motion to Vacate and Set Aside Default

Filed By: Harper, Vera

Defendant Vera Harper’s Motion to Vacate and Set Aside Default (CCP 473.5), and to
Quash Service of Summons is DENIED.

Defendant moves to set aside default judgment entered on August 9, 2013. The
instant motion was filed on August 27, 2013.

The proof of service of the summons and complaint states that Defendant was
personally served on her on May 22, 2013 at 6:17 p.m.

CCP §473.5 permits a party to file a motion to set aside default “[w]hen service of a
summons has not resulted in actual notice to the party in time to defend the
action.” (CCP §473.5(a).) CCP §473.5 also requires that the moving party submit “an
affidavit showing under oath that the party’s lack of actual
notice in time to defend the action was not caused by his or her avoidance of service
or inexcusable neglect.”

Defendant’s declaration states the following. In August 2013, she received notification
that a request for entry of default judgment had been filed with the Court. (Declaration
of Vera Harper, para. 3.) She was never properly served with the summons and
complaint. (Id. para. 4.) At the time the summons/complaint was served, Defendant
was at her place of employment. (Id., para 5.) Her fifteen year old son was home
along on this date and time. (Id.) The process server handed her son the
summons/complaint and told him “Give this to your mom.” (Id.) No other adult was in
the home during this time. (Id.)

In opposition, Plaintiff argues that it had previously sent correspondences to Defendant
including: (1) Notice that Defendant’s account had been transferred to Plaintiff’s
Internal Legal department, and (2) Notice to Defendant of service of the lawsuit and
settlement offer.

The motion is DENIED. On its face the proof of service of summons and complaint
meets statutory requirements. Filing a proof of service that meets statutory
requirements creates a rebuttable presumption that service was proper. (See Dill v.
Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1441-1442; Evid. Code section
647.) Defendant has the burden of rebutting that presumption. Defendant has not
overcome the presumptive validity of the process server’s declaration. (Id.) Here,
Defendant admits that at the time the documents were served she lived at the address.
Defendant does not proffer a declaration by her son stating that he was served with
the documents. Nor does Defendant proffer any evidence that she was at work at the
time of service (either via employer’s declaration or time sheets). The Court, therefore,
is not persuaded that Defendant did not receive actual notice in time to defend the
action.

Additionally, Defendant did not submit copy of her proposed response to the complaint
as required by CCP 473.5(b).

Accordingly, the motion is DENIED.

This minute order is effective immediately. No formal order or other notice is required.
(Code Civ. Proc. §1019.5; CRC Rule 3.1312.)