HEARING ON MOTION TO SET ASIDE DEFAULT & ENTRY OF DEFAULT JUDGMENT FILED BY CLAUDE A. BAUM III
* TENTATIVE RULING: *

Defendant Claude A. Baum, III’s Motion to Set Aside Default and Entry of Default Judgment and For Leave to Defend Action is denied. Defendant’s accompanying Request for Judicial Notice is denied as to Exhibit A as it seeks judicial notice of the truth of matters stated therein and granted as to Exhibit B.

A default or default judgment may be set aside under Code of Civil Procedure § 473(b) where a party, through his or her mistake, inadvertence, surprise or excusable neglect has had a judgment, dismissal, order or other proceeding taken against him or her. Pursuant to Code of Civil Procedure § 473.5, a default or default judgment may be set aside where service of a summons has not resulted in actual notice to a party in time to defend the action. The Court, under its inherent equitable powers, may set aside a default or default judgment obtained as the result of extrinsic fraud or mistake. While the law favors trial and disposition on the merits, when the evidence is in conflict and it is reasonable to conclude the defendant received notice, the court has discretion to deny the motion for relief from default. Ellard v. Conway (2001) 94 Cal. App. 4th 540, 548.

Plaintiff contends that Defendant Baum’s request for discretionary relief under Code of Civil Procedure § 473(b) is time barred with respect to the entry of default. Plaintiff is correct with respect to the entry of default, however, a separate 6–month period runs from entry of the default judgment, during which the court may grant relief under CCP § 473(b) as the court may set aside the judgment without disturbing the default. Rutan v. Summit Sports, Inc. (1985) 173 Cal. App. 3d 965, 970.

Defendant Baum argues that the default and default judgment entered against him are void as a matter of law because of defective service of process. He further argues that due to defective service of process, he did not have actual notice of the action and that his failure to defend the action constitutes excusable neglect such that the default and default judgment should be set aside pursuant to Code of Civil Procedure §§ 473.5 and 473(b) respectively. In support of this argument, Baum submitted a declaration stating that he was never personally served and that he did not learn of the action until “sometime in September, 2013”. Declaration of Claude A. Baum III in support of Motion to Set Aside Default and Default Judgment ¶¶ 4-5.

Plaintiff contends that Baum was personally served and directs the Court’s attention to Proof of Service of Summons filed October 16, 2012. Declaration of Matthew P. Harrington in Support of Plaintiff’s Opposition to Defendant Claude A. Baum, III’s Motion to Set Aside Default and Default Judgment ¶ 3, Exh. C; Request for Judicial Notice in support of Motion to Set Aside Default, Exh. B. Filing a proof of service that complies with statutory standards creates a rebuttable presumption that service was proper. Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1441; Evid. Code § 647. Baum contends that an entry on the Court’s online detailed case report creates an ambiguity regarding whether he was personally served. He requests that the Court take judicial notice that “On October 16, 2012, Plaintiff filed a Proof of Service stating that it served the Summons and Complaint on BAUM by substituted service.” Request for Judicial Notice in support of Motion to Set Aside Default ¶ 1, Exh. A. However, while courts may take judicial notice of court documents, they do not take notice of the truth of matters stated therein. Heritage Pac. Fin., LLC v. Monroy (2013) 215 Cal. App. 4th 972, 987-88.

Baum’s declaration fails to rebut the presumption of personal service. And, unlike the defendants in Goya v. P.E.R.U. Enterprises (1978) 87 Cal. App. 3d 886, 891-892, there is no suggestion that Baum received the summons and complaint but was unable to understand them. Nor is this action analogous to Rosenthal v. Garner (1983) 142 Cal. App. 3d 891, 895, which involved service by publication. Defendant Baum failed to present credible evidence demonstrating excusable neglect, a lack of actual notice or extrinsic fraud or mistake.

Defendant Baum also argued that the default and default judgment should be set aside under Code of Civil Procedure § 580 limiting the relief awardable on a default judgment to that demanded in the Complaint. Plaintiff’s Complaint expressly included requests for attorneys’ fees, costs and interest from September 1, 2012 in addition to $16,335.24. Plaintiff’s Request for Judicial Notice as to the Summons and Complaint filed October 9, 2012 is granted.

For the reasons stated above, Defendant Baum’s Motion to Set Aside Default and Default Judgment is denied.