Case Number: BC685418 Hearing Date: October 30, 2018 Dept: 7

[TENTATIVE] ORDER RE: DEFENDANT’S MOTION TO SET ASIDE DEFAULT; HEARING CONTINUED NO NOVEMBER 7, 2018

On December 4, 2017, Plaintiff Amanda Bonura (“Plaintiff”) filed this action against Defendant Demian Kolus Ardin (“Defendant”) for motor vehicle and general negligence relating to a January 25, 2016 automobile accident. Plaintiff filed a proof of service showing service of the summons and complaint on Defendant on December 18, 2017, on “John Doe (M, 50’S, 5’8”, 150, cauc or mid-east, short drk brn h) – co-occupant.” Defendant failed to file an Answer and default was entered on February 2, 2018. On August 3, 2018, the Court granted Plaintiff’s application for default judgment against Defendant for $59,900.41. Defendant moves to set aside default on grounds service of the summons and complaint was defective and did not result in actual notice to Defendant in time to defend the action.

Where 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, the party may move to set aside default or default judgment. (Code of Civ. Proc., § 473.5, subd. (a).) “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 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.” (Ibid.) The party must act with diligence upon learning of the judgment. (Trackman v. Kenney (2010) 187 Cal.App.4th 175, 180.)

The proof of service shows substitute service on John Doe at a residence on Denny Ave. in North Hollywood. Defendant states he never received service of this action and does not match the description of the individual served. However, this motion must be accompanied by 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, and the party shall serve and file with the notice a copy of the answer, motion, or other pleading proposed to be filed in the action. (Code of Civ. Proc., § 473.5, subd. (b).)

Although Defense counsel cites to Defendant’s declaration in the moving papers, the Court does not see that a declaration by Defendant was included in the moving or reply papers. Accordingly, the hearing on this Motion is CONTINUED to November 7, 2018, at 1:30 p.m. in Department 7, so that counsel may serve a courtesy copy of Defendant’s declaration directly to Department 7, and to ensure that all other specified requirements have been met.

Moving party to give notice.