Case Name: Cavalry Portfolio Services, LLC v. Evodio P Tecuautzin et al.
Case No.: 2006-1-CV-070299

I. Background

This is a collection action brought by plaintiff Cavalry Portfolio Services, LLC (“Plaintiff”) against defendants Evodio P Tecuahutzin and Marta L Muniz (collectively “Defendants”). Defendants’ default was taken and default judgment was entered against them. They presently move to quash service of summons, and set aside default and default judgment.
For context, Plaintiff filed its complaint on August 29, 2006. According to proofs of service filed with the Court, it attempted to personally serve the summons and complaint upon Defendants at 2530 Alhambra Drive, Apt. C in Santa Clara but was twice unsuccessful. Plaintiff then served the summons and complaint on Defendants via substituted service by leaving the documents with an occupant of the residence and thereafter mailing them. Defendants did not appear in the action. As such, default and default judgment were entered against them in April 2007.

Defendants now seek to set aside the default and default judgment, and also to quash service of summons, on the grounds they had no actual notice of the action (i.e. they did not live at 2530 Alhambra Drive, Apt. C in Santa Clara at that time) and the default judgment was obtained based on a defective proof of service, rendering the judgment void. Plaintiff opposes the motion.

II. Request for Judicial Notice

In its memorandum, Defendants request judicial notice of the “case summary” to verify that no proofs of service have been filed demonstrating service on them of the notice of entry of default and default judgment. (Mem. of Pts. & Auth., p. 6:1-2.) The Court assumes Defendants are referring to the case docket.

As a preliminary matter, the request is not properly presented. First, Defendants do not make their request in a separate document. (See Cal. Rules of Court, rule 3.1113(l).) Next, Defendants did not provide a copy of the docket. (See Cal. Rules of Court, rule 3.1306(c).)

In any event, while the docket is generally subject to judicial notice as a court record and is relevant to Defendants’ arguments, taking judicial notice of it is unnecessary here because the Court does not ultimately need to consider it to resolve the motion. (See Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 748, fn. 6 [declining to take judicial notice of matters not necessary or helpful].)

Consequently, Defendants’ request for judicial notice of the docket is DENIED.

III. Motion to Set Aside Default and Default Judgment

Defendants’ motion to set aside default and default judgment is brought pursuant to Code of Civil Procedure sections 473.5, subdivision (a) and 473, subdivision (d), as well as Civil Code section 1788.61.

A. Code of Civil Procedure section 473.5, subdivision (a)

Code of Civil Procedure section 473.5, subdivision (a) states that “[w]hen service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action.”
Here, Defendants argue the default and default judgment should be set aside because they had no actual notice of the action, and were not avoiding service or inexcusably neglectful. Defendants also preemptively argue their motion is timely. In opposition, Plaintiff insists the motion is untimely. This argument is meritorious.

Section 473.5, subdivision (a) specifies that “[t]he notice of motion shall be served and filed within a reasonable time, but in no event exceeding the earlier of: (i) two years after entry of a default judgment against him or her; or (ii) 180 days after service on him or her of a written notice that the default or default judgment has been entered.” If a party fails to file the motion within those prescribed time limits, he or she is not entitled to relief. (Trackman v. Kenney (2010) 187 Cal.App.4th 175, 180.)

Defendants argue the motion is timely because they never received written notice of the entry of default judgment, so the 180-day time limit in subdivision (a)(ii) does not apply. On the other hand, Plaintiff contends the motion is untimely under the two-year time limit in subdivision (a)(i).

The statute clearly establishes that the earlier of the two time limits controls. (Code Civ. Proc., § 473.5, subd. (a).) Even assuming the 180-day time limit was never triggered because Defendants lacked notice, the two-year time limit is implicated since two years have passed. This is a hard deadline. (See Trackman v. Kenney, supra, 187 Cal.App.4th at 180 [“[S]uch motion must be made no later than two years after entry of judgment…”]; see also Rogers v. Silverman (1989) 216 Cal.App.3d 1114, 1120-1124.) In any event, Defendants were served in 2007 with various pleadings related to the judgment at the Newman, California address where they claim they lived at that time, including the Request for Entry of Default, and an Abstract of Judgment. Defendants had notice of this action in 2007, and did nothing to seek to vacate the judgment for more than eleven years until they filed this motion in October of 0218. As Defendants filed their motion over eleven years after entry of default judgment, their motion is untimely.

Consequently, Defendants are not entitled to relief under section 473.5, subdivision (a).

B. Code of Civil Procedure section 473, subdivision (d)

Code of Civil Procedure section 473, subdivision (d) provides, in pertinent part, that “[t]he court may,…on motion of either party after notice to the other party, set aside any void judgment or order.” Defendants contend that although the judgment is facially valid, it is void because Plaintiff failed to properly serve them the summons. They conclude the default judgment should be set aside.

“When a party moves under section 473, subdivision (d) to set aside a judgment that, though valid on its face, is void for lack of proper service, the courts have adopted by analogy the statutory period for relief from a default judgment provided by section 473.5, that is the two-year outer limit.” (Trackman v. Kenney, supra, 187 Cal.App.4th at 180 [internal citations omitted].) As previously stated, Defendants’ motion was filed more than two years after default judgment was entered against them. Because the motion is untimely, they are not entitled to relief under section 473, subdivision (d). (Id., at 181.) Also, see above regarding the notice of the action they received in 2007.

C. Civil Code section 1788.61

Civil Code section 1788.61, subdivision (a)(1) provides that “[n]otwithstanding Section 473.5 of the Code of Civil Procedure, if service of a summons has not resulted in actual notice to a person in time to defend an action brought by a debt buyer and a default or default judgment has been entered against the person in the action, the person may serve and file a notice of motion and motion to set aside the default or default judgment and for leave to defend the action.” Defendant argues that Plaintiff is a debt buyer and therefore this section applies.

However, as Plaintiff correctly observes, section 1788.61 only applies “to default or default judgment entered on or after January 1, 2010…” (Civ. Code, § 1788.61, subd. (d).) Here, the default judgment was entered in April 2007. Thus, section 1788.61 is inapplicable.

D. Conclusion

In consideration of the foregoing, Defendants’ motion to set aside default and default judgment is DENIED.

IV. Motion to Quash Service of Summons and Complaint

Because Defendants were unsuccessful in setting aside the default and default judgment against them, the Court will not evaluate their motion to quash. “ ‘A defendant against whom a default has been entered is out of court and is not entitled to take any further steps in the cause affecting plaintiff’s right of action; he cannot thereafter, until such default is set aside in a proper proceeding, file pleadings or move for a new trial or demand notice of subsequent proceedings.’” (Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc. (1984) 155 Cal.App.3d 381, 385-386.)

Therefore, Defendants’ motion to quash service of summons and complaint is DENIED.

The Court will prepare the Order.