Case Number: 13K06350    Hearing Date: August 19, 2014    Dept: 77

NOTE: The following *revised* tentative ruling was posted at approximately 5 p.m. on August 18, 2014, because the Court did not actually receive the filings in the late afternoon.

Defendant Tomer Maman’s Motion to Set Aside Default and Default Judgment is GRANTED.

CCP § 473.5 authorizes a court to set aside a default and default judgment “[w]hen service of a summons has not resulted in actual notice to a party in time to defend the action. . . .” The California Supreme Court has held that “[i]t is the policy of the law to favor, whenever possible, a hearing on the merits,” so when a party promptly moves to set aside a default, “very slight evidence is required” to support setting aside the default. Shamblin v. Brattain (1988), 44 Cal.3d 474, 478; see, e.g., Comunidad En Accion v. Los Angeles City Council (2013), 219 Cal.App.4th 1116, 1133-34 (citing “very slight evidence” standard in finding that a trial court abused its discretion in denying a party relief from default). “Doubts are resolved in favor of the application for relief from default.” Elston v. City of Turlock (1985), 38 Cal.3d 227, 235 (superseded by statute on an unrelated basis). A trial court may decide the matter on affidavits alone and draw reasonable inferences from them. Goya v. P.E.R.U. Enterprises (1979), 87 Cal.App.3d 886, 891; Connolly v. Connolly (1979), 23 Cal.3d 590, 597-98.

Here, defendant declared that the substituted service of the summons did not result in actual notice to him in time to defend the lawsuit. His actions in 2014 provide significant support for this. Default was entered against him on January 30, 2014, which is when service of the request for entry of default was mailed to him. Defendant claims that he had no knowledge of the default until “receiving a copy of the entry of default from Plaintiff’s counsel in April 2014.” Defendant in fact retained counsel in that month, and, on April 17, 2014, defense counsel first contacted plaintiff’s counsel about the case. Defense counsel filed the instant motion to set aside default on May 8, 2014. Plaintiff’s counsel nevertheless proceeded with July 18, 2014, filings to obtain default judgment, and obtained judgment.

The fact that defendant acted to obtain counsel and vigorously assert his rights before judgment was obtained against him — indeed, promptly enough that it was before plaintiff even filed declarations seeking default judgment — supports his claim that he lacked actual knowledge of the lawsuit earlier.

Based on the declarations — and with doubts resolved in his favor — defendant likewise supports his claim with proof sufficient to show that substituted service was not effectuated in a manner sufficient to give him notice. He claims not to know a woman who meets the description of the woman served. Two of the purported characteristics of his wife that differ from the process server’s declaration (she is not middle eastern but caucasian; she is not 160 pounds but was 116 pounds) are sufficiently convincing in this regard. Defendant to file its Answer within five days.

Trial in this case is set for August 19, 2015, at 8:30 a.m.

Moving party to give notice.