2011-00110490-CL-CL

CACH, LLC vs. Thomas D. Lininger

Nature of Proceeding: Motion to Set Aside Default

Filed By: Lininger, Thomas D.

Defendant Thomas D. Liniger’s Motion to Set Aside Default and default judgment is unopposed but is denied, without prejudice.

This litigation arises from a credit card debt. Defendant moves for relief from default and default judgment pursuant to the discretionary relief standards of CCP 473(b). He contends he had no knowledge of this lawsuit until a Writ of Levy was issued in June of 2019.

A Clerk’s default and default judgment was entered in this case on January 30, 2012 in the amount of $11,518.75. The proof of service (ROA 7), states that defendant was personally served with the summons and complaint on September 19, 2011.

CCP 473(b) provides “The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise,: or excusable neglect. Application for this relief…shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” Moreover, even within the 6 month period, there is a diligence requirement. The motion must be made “within a reasonable time” within that six month period, therefore in order to qualify for relief the moving party did not act diligently in seeking relief. Elston v City of Turlock (1985) 38 Cal.3d 227, 234. This motion was filed over seven years after entry of default and default judgment. Thus the request to set aside default based on the ground of excusable neglect is denied as untimely. The Court has no authority under CCP 473(b) to excuse defendant’s non-compliance with the six month limit. Arambula v Union Carbide Corp. (2005) 128 Cal.App.4th 333, 345.

The Court notes that defendant did not seek relief under the debt collection statute at Civil Code 1788.61, which may or may not afford relief under these circumstances.

Although the points and authorities state that defendant was never served with the summons and complaint, Lininger has expressly moved to set aside the judgment only on the basis of excusable neglect pursuant to CCP 473(b). The declaration in support of the motion contains no facts concerning the alleged lack of service of the summons and complaint. (See Declaration of Lininger) Thus, even if defendant had sought to set the judgment aside on the basis that it was void under CCP 473(d) or under the court’s inherent power, he has not presented any evidence to support lack of service and a void judgment.

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