2011-00113923-CU-PO

Ashley M Naghash vs. Board of Trustees of UC

Nature of Proceeding: Motion to Set Aside Default and Default Judgment

Filed By: Richards, Terry

This matter was continued from March 11, 2014 to allow Plaintiff an opportunity to file
an opposition to Defendant Terry Richard’s Supplemental Declaration.

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.

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.

In his supplemental declaration, Defendant 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, his 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.)

In her supplemental brief in opposition to the motion, Plaintiff proffers a “LexisNexis
Accurint for Collections” report which purportedly shows that Defendant only lived at
the Center Lane address from July 2011 to November 2011 and shows that Defendant
lived at the Wildflower Dr. address from August 2006 through December 2012.

The Court notes, however, that the “LexisNexis Accurint” report states “The Public
Records and commercially available data sources used in this system have errors.
Data is sometimes entered poorly, processed incorrectly and is generally not free from
defect.” Thus, the reliability and accuracy of this report is questionable at best.

Given the policy of the law to have every litigated case tried upon its merits, the Court
finds that Defendant has submitted sufficient evidence to demonstrate that he was not
properly served with the complaint. Accordingly, the motion to set aside default is
GRANTED.

Plaintiff’s request for $5,282.50 in attorneys’ fees and expenses pursuant to CCP §473
(b) is DENIED. Mandatory attorneys’ fees are only awarded where relief is based on
an attorney’s affidavit of fault. (CCP §473(b).)

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

Plaintiff’s objections to evidence nos. 1-12 are overruled. Plaintiff’s objections to
evidence no. 13-14 are sustained.