2012-00128637-CU-CL

Northstar Education Finance, Inc. vs. Timothy S. Brown

Nature of Proceeding:   Motion to Set Aside

Filed By:  Brown, Timothy S.

Defendant Timothy S. Brown’s Motion to Set Aside Default and Default Judgment is
granted pursuant to CCP 473(b).

Defendant’s default and default judgment were entered on July 3, 2013. Defendant
was purportedly served on March 26, 2013 by substituted service at an address where
he no longer lived, 2021 21st Street, Sacramento.   Defendant had moved from that
address in 2011.  Defendant moved from Sacramento in 2012 to Newport Beach.
(Declaration of Timothy S. Brown)  The proof of service indicates that the process
server was told that defendant no longer lived at the service address.  The landlord
states that defendant was her tenant until April of 2011. (Declaration of Victoria A.
Smith.)    Defendant states that he learned that a lawsuit had been filed in March 11,
2013 when he received forwarded mail from the law firm notifying him of a change of             address.  Defendant had a conversation with the law firm on June 14, 2013 and states
he advised the law firm of his concerns over the alleged service and told plaintiff he
had not lived in Sacramento since 2012.   Defendant states that plaintiff’s office
advised him that the matter would be “resolved” and confirmed that this meant the
matter would be dismissed and re-filed in San Diego, where defendant now lives.
(Declaration of Defendant.)

Plaintiff contends that defendant was properly served at his usual mailing address, and
that such address need not be his residence address, citing to Ellard v Conway (2001)
94 Cal.App.4th 540, 545.  However, in Ellard, defendants were served at a postal
annex because they had moved from the residence address.  The court found that the
residential address was not a proper place for service because the defendants had
moved.  In this case, the Sacramento address was not the usual mailing address
because defendant had moved.  The fact that he received some forwarded mail from
that address does not establish that it was his “usual mailing address.”   The fact that
defendant may have had actual notice that a lawsuit have been filed does not cure the
service defect.

The default and default judgment are set aside on the ground that proper substituted
service was not effectuated, and on the ground defendant reasonably believed that the
plaintiff would not take his default after being informed that he lived in San Diego.

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