2010-00073570-CU-CL

NCCS Inc vs. Theresa L McWilliams

Nature of Proceeding: Motion to Vacate Default Judgment

Filed By: Shalaby, Andrew W.

Defendants’ motion pursuant to Code of Civil Procedure §473(b) to set aside the
default and default judgment entered against them is DENIED, as follows.

Defendants move to set aside the default and default judgment entered against them
in September 2013 on the grounds that a notice of (conditional) settlement was filed in
May 2010 which obviated the need for defendants to respond to the complaint and
regardless, defendants were never served or properly served which precludes the
valid entry of default and/or default judgment.

According to the opposition, defendants agreed in 2010 to make periodic payments on
the debt at issue in this litigation and plaintiff agreed that when full payment had been
received, it would dismiss this action. Thus, plaintiff filed a notice of conditional
settlement in May 2010 which indicated that the payment plan, if timely completed by
defendants, would allow dismissal in or about November 2013. Plaintiff claims that
although defendants complied with the settlement terms, they ultimately failed to make
the requisite payments beginning in September 2012 and thereafter, plaintiff obtained
entry of default and default judgment pursuant to the original written settlement
agreement. For these reasons, defendants have failed to establish any legitimate
basis for setting the default and default judgment aside pursuant to Code of Civil
Procedure §473(b).

The Court finds that the parties’ written settlement agreement required defendants to
make periodic payments toward the amount owed to plaintiff and that in the event of
their default, plaintiff was permitted by the express terms of the agreement to seek the entry of a default judgment for the outstanding balance “without notice and hearing
thereon” being given to defendants. Therefore, defendants effectively waived their
right to challenge plaintiff’s service of summons and complaint and the alleged lack of
notice that plaintiff was seeking the entry of default and/or default judgment against
defendants. For these reasons, defendants’ motion to set aside the default and default
judgment is hereby denied.

This minute order is effective immediately. No formal order or other notice is required.
(Code Civ. Proc. §1019.5; CRC Rule 3.1312.)