05AM02835

Cavalry Portfolio Services vs. Kelly L. Robinson

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

Filed By:   Robinson, Kelly L.

Defendant Kelly Robinson’s unopposed motion to set aside default and default
judgment is denied.

Defendant seeks to set aside a default and default judgment entered in March 2006
pursuant to CCP § 473(b) and pursuant to CCP § 473.5.  The motion is, unfortunately,
untimely.  A motion set aside pursuant to CCP § 473(b) on the basis that the default
and/or default judgment in this action was entered against Defendants as a result of
inadvertence, surprise, or excusable neglect was required to be filed within a
reasonable time, not to exceed six months after “the judgment, dismissal, order..” was
entered.  (CCP § 473(b).)  Here the motion was filed well after the six month deadline
as the judgment was entered in March 2006.  In addition, a motion to set aside
pursuant to CCP § 473.5 must be filed within a reasonable time, not to exceed the
earlier of two years after the entry of a default judgment or 180 days after service of
written notice that a default or default judgment was entered.  (CCP § 473.5(a).)
Again, the judgment was entered in March 2006 and the motion filed in May 2014 is
untimely.

To the extent that the form motion checked the boxes indicating that the motion should
be granted on the basis that the judgment is void, Defendant provides no argument as
to how the judgment is void on its face.  Indeed, at most, she argues that the judgment
is void because while facially valid, it is void because she was not properly served and
that the judgment may be set aside pursuant to CCP § 473(d).  However, where 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
th
is, the two-year outer limit.”  (Trackman v. Kenney (2010) 187 Cal.App.4   175, 180;
Weil and Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group
2008) P 5:280.)  The instant motion filed well after two years after the judgment was
entered is untimely to the extent it is based on CCP § 473(d).

The motion is denied.

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