Case Name: Asset Acceptance, LLC v. Irma Kozua
Case No.: 2011-1-CV-196384

This is a limited civil collection in which a default judgment was entered on October 13, 2011. Currently before the Court are motions to quash, to set aside default and to dismiss for failure to serve within three years brought by specially appearing Defendant Irma Kozua (“Defendant”).

As an initial matter, the Court will exercise its discretion to consider Plaintiff’s late filed opposition to these motions.

Defendant states that her motion to quash is brought “pursuant to [CCP] §418.10(a)(1) on the ground that absent service of summons by statutorily authorized means, this Court has not acquired personal jurisdiction over this defendant. This motion is further based upon [CCP] §583.210 and 583.250(a), which mandate the dismissal of this action for failure to serve the Summand and Complaint within 3 years from the date the action was filed.” (Notice of Motion at 2:10-14, brackets added.) The Notice of Motion does not cite any authority for the motion to set aside the default judgment, but it is apparent from Defendant’s papers that she is relying upon CCP §473(d) (“The Court may, upon motion of the injured party . . . correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, upon motion of either party, after notice to the other party, set aside any void judgment or order.”)

Defendant’s motion to quash service is DENIED as untimely. Pursuant to CCP §418.10(a) Defendant could only move to quash “on or before the last day of her time to plead or within any further time that the court may for good cause allow.” Entry of a defendant’s default cuts off its right to appear in the action; the defendant is “out of court” and has no right to participate in the proceedings until either its default is set aside or a default judgment is entered. (See Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc. (1984) 155 Cal.App.3d 381, 385-86.) Here a default judgment was entered more than five years ago and Defendant has failed to show that good cause exists such that she should be allowed to move to quash while the default judgment remains in place.

Defendant’s motion to set aside the default judgment under CCP §473(d) is also DENIED as untimely. “Under Code of Civil Procedure section 473, subdivision (b), a party may seek relief on the grounds of ‘mistake, inadvertence, surprise, or excusable neglect’ within ‘a reasonable time,’ but not more than six months after the entry of the default or default judgment. Code of Civil Procedure section 473.5 permits the court to set aside a default or default judgment if the defendant, ‘through no inexcusable fault of his own, [received] no actual notice’ of the action, provided that relief is requested within a reasonable time, but not more two years after the entry of the default judgment. In addition, under subdivision (d) of Code of Civil Procedure section 473, the court may set aside orders and judgments that are ‘‘void,’’ including orders and judgments void for want of fundamental jurisdiction or personal jurisdiction. In some instances, that relief is subject to the time period specified in Code of Civil Procedure section 473.5, for example, when the party seeking relief maintains that the judgment, although facially valid, is void due to lack of proper service of process.” (Bae v. T.D. Service Company (2016) 245 Cal.App.4th 89, 97 [internal citations omitted, emphasis added.])

Having failed to show that the existing October 13, 2011 default judgment was based on improper service and should be set aside on that basis, Defendant’s motion to dismiss for failure to serve pursuant to CCP §§583.210 & 583.250(a) is also DENIED.