2011-00113923-CU-PO
Ashley M Naghash vs. Board of Trustees of CSU
Nature of Proceeding:
Filed By:
Motion to Set Aside Default and Default Judgment
Richards, Terry

This matter was continued from March 11, 2014.
Defendant Terry Richard’s motion to set aside default and default judgment is ruled
upon as follows.

Default was entered on against Defendant on May 31, 2013. On September 23, 2013,
Defendant moved to set aside the default. The Court denied the motion to set aside
on the grounds that Defendant did not include a copy of the proposed order.

Defendant moved for reconsideration on December 27, 2013. On January 28, 2014,
the Court granted the motion for reconsideration on the grounds that its prior motion
should have been denied without prejudice, allowing Defendant to re-file the motion.
Defendant filed the instant motion the same day.

The Court notes that default judgment has not yet been entered against Defendant.
The proof of service indicates that Defendant was served via substitute service on
February 17, 2013 at 2715 Wildfire Dr. Antioch, CA 94531. The papers were served
on “John Doe, African American Male 38 Yrs 8’0″ 249 lbs. Brown Hair Brown Eyes.”
Defendant has submitted a supplemental declaration along with the notice of
continuance of the hearing. The supplemental declaration states the following: (1) on
February 17, 2013, he was not living at 2715 Wildfire Dr., Antioch CA, which is his
mother’s address, (2) since June 2011, he address has been 2806 Center Lane,
Antioch, California, (3) on March 18, 2013, Defendant’s mother found a copy of the
amended summons and complaint loosely stuffed in her mailbox, (4) the documents
were never personally served nor delivered via mail on Defendant, (5) on May 29,
2013, the request for entry of default was mailed to Defendant’s mother’s home, (6) on
July 28, 2013, the house he was living in burned down and Defendant began to use
his mother’s address temporarily for mailing. (Declaration of Terry Richards, filed on
March 24, 2014.)

As an initial matter, the Court disagrees with Plaintiff that the motion is untimely.
Default was entered on May 31, 2013 and Defendant timely filed a motion for relief
from default on September 23, 2013. Although the Court initially denied the motion, it
thereafter allowed Defendant the opportunity to re-file the motion. Given the record
before it, the Court does not agree the motion is untimely.

Plaintiff argues that the complaint was properly served. She argues that on December
20, 2013, the process server attempted to serve Defendant at 2715 Wildflower Dr.
The process server was told by “John Doe” that she had a bad address. The process
server checked with a neighbor who advised her that they did not know the names of
the tenants bud that the family lives there. The process server again attempted to serve Defendant at the same address, however, there was no answer at the door.

Thereafter, Plaintiff conducted a “more thorough re-search of the public records and
publicly available information.” Plaintiff’s counsel was unable to determine any other
address for Defendant. The process server thereafter sub-served Defendant.

Substitute service on an individual is accomplished by “leaving a copy of the summons
and complaint at the person’s dwelling house, usual place of abode, usual place of
business, or usual mailing address other than a United States Postal Service post
office box, in the presence of a competent member of the household or a person
apparently in charge of his or her office, place of business, or usual mailing address
… , at least 18 years of age, who shall be informed of the contents thereof, and by
thereafter mailing a copy of the summons and of the complaint by first-class mail,
postage prepaid to the person to be served at the place where a copy of the summons
and complaint were left.” (CCP § 415.20 (b).)

Given Defendant’s supplemental declaration, the Court now finds that Defendant has
demonstrated that he was not properly served. Defendant has provided the address at
which he was living at the time of service and copy of the lease agreement.

Accordingly, the motion to set aside default is GRANTED.

Defendant shall file his answer by no later than April 21, 2014.

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

The notice of motion does not provide notice of the Court’s tentative ruling system, as
required by Local Rule 1.06(A). Defendant is directed to contact Plaintiff’s counsel
forthwith and advise counsel of Local Rule 1.06 and the Court’s tentative ruling
procedure. If Defendant is unable to contact Plaintiff’s counsel prior to hearing,
Defendant shall be available at the hearing, in person or by telephone, in the event
opposing party appears without following the procedures set forth in Local Rule 1.06
(A).
The court notes that moving party has indicated the incorrect address in its notice of
motion. The correct address for Department 54 of the Sacramento County Superior
Court is 800 9th Street, Sacramento California 95814. Moving party shall notify
responding party(ies) immediately.