Re: Credit Bureau of Santa Maria v. Jim & Gail Sweasy 17-LCP-0214

Hearing: Motion to Set Aside Default

Date: March 27, 2018

Plaintiff Credit Bureau of Santa Maria Inc. dba Coast Recovery Solutions (“Plaintiff”) brings this action against Defendants James E. Sweasy and Gail Sweasy (“Defendants”). Plaintiff’s lawsuit seeks to recover money Defendants owe to the Plaintiff’s assignor, San Luis Podiatry Group. Plaintiff seeks $1,645.13 in damages, interest at 10% annually from July 25, 2016, and attorney fees and costs. (Compl., ¶ 10.)

Both Defendants were served with the relevant documents1 on May 9, 2017. On June 8, 2017, Mr. Sweasy filed an answer. On July 11, 2017, Mr. Sweasy’s answer was stricken by the Court because he did not file a proof of service showing the answer was served on Plaintiff. (To date, Mrs. Sweasy has not filed an answer.)

Thereafter, Plaintiff took Defendants’ default on February 2, 2018, and the Court entered a default judgment on February 6, 2018, awarding Plaintiff $2,438.49 in damages. A writ of execution in the amount of $2,613.15 was also issued on February 6, 2018.

Defendants now seek to set aside the entry of default and default judgment “due to bad information from the Court Clerks Window.” (Mtn., p. 2, ¶ 7.) Defendants claim that on June 2, 2017, an unnamed court clerk called Defendants and advised “they [i.e., the Court] had misplaced the Proof of Service.” (Id. at ¶ 2.) Defendants further claim they attempted to file the proof of service on several occasions, but were given differing information from different clerks, and were ultimately unable to file the proof of service. (Id. at p. 2, passim.)

There is no opposition to the motion. However, Defendants have not filed any proof of service showing their motion and supporting paperwork were served on the Plaintiff2.

The Court will not rule on the matter until (1) proof of service has been provided showing notice to Plaintiff’s attorney of record, giving Plaintiff an opportunity to respond; (2) Defendants submit a copy of the answer they propose to file; and (3) the proof of service for the answer Defendants allege to have tried to submit on multiple occasions. (See Code of Civ. Proc., § 473(b) [application for relief “shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted….”].)

Defendants are ordered to appear at the March 27, 2018 hearing with the documentation requested above.
1 Including the Summons and Complaint, Civil Case Cover Sheet, Standing Case Management Order, and Statement of Venue. 2 As noted above, the record reflects that Defendants failed to file a proof of service with Mr. Sweasy’s original answer.