Case Number: KC062955    Hearing Date: August 12, 2014    Dept: J

Re: Pride Acquisitions, LLC v. Lawrence J. Winslow, et al. (KC062955)

MOTION TO SET ASIDE DEFAULT AND DEFAULT JUDGMENT

Moving Parties: Defendants Lawrence and Clarissa Winslow

Respondent: No timely opposition filed

POS: Moving OK

The Complaint, filed on 1/19/12, sought $39,944.15 for unpaid balance on a credit card issued by Chase Bank to Defendants. Defaults against Defendants were taken on 3/26/12. On 6/7/12, a Default Judgment was entered in the amount of $65,889.74.

Defendants Lawrence J. Winslow and Clarissa Winslow (collectively “Defendants”) move pursuant to CCP § 473.5 for an order vacating and setting aside the default and default judgment on the grounds that that service of process did not result in actual notice to Defendants.

Where service of summons has not resulted in actual notice to a party in time to defend the action, the court is empowered to grant relief from a default or default judgment. (CCP § 473.5.) This section is designed to provide relief where there has been proper service of summons (e.g., by substitute service or by publication) but defendant nevertheless did not find out about the action in time to defend. Typically, these are cases in which service was made by publication. (See Randall v. Randall (1928) 203 Cal. 462, 464–465; Trackman v. Kenney (2010) 187 Cal.App.4th 175, 180.) A defendant is entitled to relief under CCP § 473.5 if he or she has not received actual notice of the proceedings. Imputed or constructive notice is not “actual” notice (see CC § 18). (Rosenthal v. Garner (1983) 142 Cal.App.3d 891, 895.)

TIMELINESS:

Relief under CCP § 473.5 must be sought “within a reasonable time”; and “in no event later than 2 years after entry of default judgment or 180 days after service of written notice that such default or default judgment has been entered,” whichever comes first. (CCP § 473.5; see Schenkel v. Resnik (1994) 27 Cal.App.4th Supp. 1, 4; Trackman v. Kenney, supra, 187 Cal.App.4th at 180.)

Plaintiff commenced this action on 1/19/12 and obtained a default judgment against Defendants on 6/7/12.

Defendants represent that Mr. Winslow first discovered that a suit had been filed against them in November of 2013, after he received a correspondence from Kenosian & Miele claiming to have a judgment against them. (Motion, Lawrence Winslow Decl. ¶ 6, Exh. C.) Since Defendants never had been served or received notice of the suit, Mr. Winslow sent a debt validation letter to request information on the alleged debt. (Id. ¶ 7.) Kenosian & Miele responded on or about 2/16/14. (Ibid., Exh. D.) Upon receipt of the validation response, Mr. Winslow promptly hired counsel to assert his rights in this matter. (Id. at ¶ 8.) The instant motion was filed on 6/6/14, less than 2 years after entry of default judgment. It also appears that relief was sought within a reasonable time.

LACK OF NOTICE:

The Proof of Service filed with the Court demonstrates that Defendants were served by substituted service on 2/1/12 at their home, 1634 Oak Tree Terrace, Glendora, CA 91741 (“Glendora Address”). (Motion, Exh. B.)

Defendants represent that they have never lived, resided or received mail at the Glendora Address. (Motion, Winslow Decl. ¶ 4.) Mr. Winslow attests that in approximately 2003, he co-signed for a loan for his friend Michael Lancaster for the Glendora Address, but that by the time of the alleged service, the home had been foreclosed upon and its residents were entirely unknown to him. (Id. ¶ 5.)

It appears that Defendant’s lack of notice was not due to inexcusable neglect and/or that they were avoiding service. Thus, the motion is granted. The default of the Defendants and the default judgment rendered herein are set aside. The proposed Answer to Unverified Complaint is deemed filed and served this date.

The court will set a trial date or a trial setting conference date. Moving parties to give notice.