2012-00133349-CL-CL

Capital One Bank USA NA vs. Christine Y Hampton

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

Filed By:  Brown, Christine Y.

This matter was originally set for hearing and was both argued and submitted on
11/6/2013.  However, the Court continued the hearing to 12/4/2013 to permit the
parties to reach an agreement on resolution of this matter.  The Court’s original
tentative ruling is repeated below.

Defendant Christine Hampton’s motion to set aside default and default judgment  (CCP
473.5) is DENIED.

Default judgment was entered on March 28, 2013.  The proof of service states that
Defendant was served with the summons and complaint via substitute service on
January 7, 2013 at 2031 4th St., Sacramento, CA 95818.  The documents were served
on “Susan Hampton, Co-occupant, white, female, 40 years old, brown hair, 5 feet 5
inches, 140 pounds.”  The documents were also mailed to the same address on
January 8, 2013.

Defendant argues that she had no notice of the summons and complaint in time to
defend the action.  She states in her declaration that she lived at the “2031 4th St.”
address between April 2009 and February 1, 2013.  She states that Susan Hampton
“does not exist to the extent that nobody by that name or description has ever lived or
visited 2031 4th Street prior to defendant leaving.”   She further states that she did not
receive the summons/complaint in the mail nor the notice of entry of judgment which
was mailed on March 28, 2013. She states that her lack of notice was not caused by
her avoidance of service or inexcusable neglect.

The motion is DENIED. On its face the proof of service of summons and complaint
meets statutory requirements. Filing a proof of service that meets statutory
requirements creates a rebuttable presumption that service was proper. (See Dill v.
Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1441-1442; Evid. Code section
647.) Defendant has the burden of rebutting that presumption. Defendant has not
overcome the presumptive validity of the process server’s declaration. (Id.)  Here,
Defendant admits that at the time the documents were served (via substitute service
and mail), she lived at the 2031 4th St. address. The Court is not persuaded that
Defendant did not receive actual notice in time to defend the action.

Moreover, Defendant did not file a memorandum of points and authorities as required
by CRC 3.1112(a).

Accordingly, the motion is DENIED.

Plaintiff is admonished for filing its opposition without redacting or otherwise shielding
the personal information found in Exhibit 2 which accompanies the opposition, in
violation of CRC Rule 1.20(b). Counsel is reminded that the Court’s CCMS system
allows the public to electronically access and view all pleadings once they are filed,
unless the Court orders otherwise. Thus, it is imperative for counsel to
appropriately redact all pleadings and documents before filing.  Failure to do so
will in the future subject counsel to monetary sanctions. No later than 11/12/2013,
Plaintiff shall file and serve (1) an appropriate motion to seal pursuant to CRC Rule
2.550 et seq. and (2) an appropriately redacted but otherwise identical version of the
“Plaintiff’s Opposition to Defendant’s Motion to Set Aside and Vacate Default and
Default Judgment” which was filed on 10/15/2013 and contains Defendant’s
unredacted social security number.

The clerk is directed to change the security clearance for  “Plaintiff’s Opposition
to Defendant’s Motion to Set Aside and Vacate Default and Default Judgment”
which was not redacted but nevertheless filed on 10/15/2013.

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