Case Number: GC049845    Hearing Date: September 05, 2014    Dept: B

DEALER SERVICES CORPORATION vs PASADENA AUTO DEALER
Motion to Vacate and Set Aside Default Judgment

This case arises from the Plaintiff’s claim that the Defendant, Pasadena Auto Dealer, Inc., breached an agreement by failing to repay a line of credit. Defendants, Mohammad Ebrahimi, and Nabila Ebrahimi, breached an agreement to guaranty the performance of Pasadena Auto Dealer, Inc.
Pasadena Auto Dealer, Mohammad Ebrahimi, and Nabila Ebrahimi then filed a Cross-Complaint against Nextgear Capital, Inc., Manheim Investments, Inc., and a number of individuals to claim that Daniel Star, Maria Yabut, Corey Pasek, Kevin Miller, James Johnson, Steve Akerboom, and Michael Markov defrauded them.
Trial is set for December 1, 2014.

This hearing concerns the request of Cross-Defendant, Steve Akerboom, to set aside the default judgment entered against him because he had no notice of the Cross-Complaint. The Cross-Defendant seeks relief solely under CCP section 473(b), which provides that the Court shall set aside a default entered through the mistake, inadvertence, surprise, or excusable neglect of a party if the motion is made within a reasonable time, which can be no later than six months from the entry of the judgment. In addition to being made within the six months’ period, the application must be made within ‘a reasonable time,’ and what is a reasonable time in any case depends upon the circumstances of that particular case. Schwartz v. Smookler (1962) 202 Cal. App. 2d 76, 81 (reversing order to set aside default because there was an absence of a satisfactory explanation for a delay of more than three and one-half months in seeking to set aside a default)

Steve Akerboom states in paragraph 5 that the Cross-Defendants failed to serve him with the Cross-Complaint. In paragraph 8, Mr. Akerboom states that he discovered the default judgment when another Cross-Defendant informed him about the default judgment. There are no facts identifying when Mr. Akerboom discovered the default judgment.

First, these facts do not indicate any grounds for relief under CCP section 473(b) because the default was not entered through any inadvertence, surprise, mistake, or neglect. Instead, the Cross-Defendant should have sought relief under CCP section 473.5 because he had no actual notice of the service of summons.
Second, the declaration does not include sufficient facts to rebut the evidence of service in the proof of service. The Cross-Defendants offers no facts to indicate that the address was incorrect or that he was not present on the date of service.
Third, these facts do not indicate that the Cross-Defendant sought relief within a reasonable time. The Cross-Defendant does not identify when he discovered the default judgment and then explain any delay.

Accordingly, the Court denies the motion because it does not demonstrate that the Cross-Defendant is entitled to relief under CCP section 473(b).