Case Number: KC053622    Hearing Date: September 30, 2014    Dept: J

Re: Alliance Credit Services, Inc. v. Antonio Garcia, Jr. (KC053622)

MOTION TO SET ASIDE DEFAULT AND DEFAULT JUDGMENT

Moving Party: Plaintiff Antonio Garcia, Jr.

Respondent: Plaintiff Alliance Credit Services, Inc.

POS: Moving OK; Opposing served by regular mail contrary to CCP § 1005(c)

Defendant Antonio Garcia Jr. (“Defendant”) moves pursuant to CCP §§ 473 and 473.5 for an order vacating and setting aside the default and default judgment entered in this action on October 22, 2008 and December 8, 2008, respectively, and for leave to file an answer.

Defendant contends that he is not the “Antonio Garcia Jr.” who incurred the debt in the underlying lawsuit. Defendant asserts that he never received notice of the lawsuit until he was served with a wage garnishment. Thus, Defendant’s failure to respond to the Complaint is because of the mistake, inadvertence, surprise, or excusable neglect.

RELIEF UNDER CCP § 473.5:

Where service of summons has not resulted in actual notice to a party in time to defend the action, the court is empowered to grant relief from a default or default judgment. (CCP § 473.5.) Relief under CCP § 473.5 must be sought “within a reasonabletime … ”; and “in no event later than 2 years after entry of default judgment or 180 days after service of written notice that such default or default judgment has been entered,” whichever comes first. (CCP § 473.5; see Schenkel v. Resnik (1994) 27 Cal.App.4th Supp. 1, 4.)

It has been more than 2 years since the default judgment was entered. Thus, Plaintiff’s motion under CCP § 473.5 is denied as untimely.

RELIEF UNDER CCP § 473:

“The court may… on motion of either party after notice to the other party, set aside any void judgment or order.” (CCP § 473(d).) Lack of personal jurisdiction renders a default judgment void, so that it may be vacated at any time. (Strathvale Holdings v. E.B.H. (2005) 126 Cal.App.4th 1241, 1249.)

Filing a proof of service that complies with statutory standards creates a REBUTTABLE PRESUMPTION that service was proper. (See Dill v. Berquist Const. Co., Inc. (1994) 24 Cal.App.4th 1426, 1441–1442.)

The Proof of Service of Summons filed on September 5, 2008 demonstrates that Defendant was personally served on August 27, 2008.

Defendant attests that prior to receiving the wage garnishment on April 30, 2014, Defendant had no knowledge of this lawsuit (Motion, Garcia Decl. ¶¶ 4-5); Defendant never incurred a debt with Alliance Credit Services, and knows nothing of this debt (Id. ¶ 6); Defendant does not go by the a/k/a “Joe A. Garcia” (Id. ¶ 7); and the entry of default and default judgment was not discovered by Defendant until April 30, 2014 (Id. ¶ 8).

Defendant’s declaration rebuts the presumption created by the proof of service that the service was proper.

Plaintiff, in opposition, fails to provide any facts requisite to effective service. Thus, the motion is granted. The proposed answer is deemed filed and served on the date of the hearing.