Case Number: BC520451 Hearing Date: August 04, 2015 Dept: 92
SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

STATE FARM MUTUAL AUTOMOBILE INS. CO.,
Plaintiff(s),
vs.
KAREN L. ELIEFF, et al.,
Defendant(s).

Case No.: BC520451

[TENTATIVE] ORDER DENYING MOTION TO SET ASIDE DEFAULT AND DEFAULT JUDGMENT WITHOUT PREJUDICE

Dept. 92
10:00 a.m. – #18
August 4, 2015

Plaintiff, State Farm Mutual Automobile Insurance Company filed this action against Defendants, Karen L. Elieff and Thomas H. Naud for insurance subrogation. Plaintiff filed the complaint on 9/06/13. On 10/23/14, Plaintiff dismissed the action against Naud. On 11/19/13, Plaintiff filed proof of service of the summons and complaint on Defendant; the POS shows service on Defendant via substituted service on Frank Elieff at 2808 Panorama Drive in Bakersfield.

On 12/26/13, the Clerk entered Defendant’s default. On 6/20/14, the Court entered judgment in Plaintiff’s favor in the amount of $32,238.18. At this time, Defendant moves to set aside service of the summons and complaint, contending she does not live with her father at the Panorama Drive address, and did not know about the lawsuit against her until she attempted to obtain a replacement driver’s license from the DMV on 1/03/15.

Plaintiff argues the motion should be denied because (a) it is not clear what code section the motion is brought under, (b) service was proper, and (c) Defendant failed to include a proposed answer with her motion.

Plaintiff’s first argument is that it is not clear what code section the motion is brought under. It is true that the motion does not expressly refer to CCP §473.5, only to §473. In Luri v. Greenwald (2003) 107 Cal.App.4th 1119, 1124, the court considered a similar issue. The defendant therein moved to set aside a default under the discretionary provision of §473(b). The court of appeals held that it was improper for the trial court to consider the motion under the mandatory provision of §473(b) absent notice that the motion was being brought per that provision. The motion is denied without prejudice for failure to cite the proper code section under which Defendant seeks relief.

Plaintiff’s second argument is that Defendant was properly served. The nature of a motion under CCP §473.5 is that the defendant was properly served, but the proper service did not result in actual notice to the defendant in time to respond. This argument is therefore rejected. Defendant made an adequate showing that she was served via substituted service at her father’s home, but she was not residing at her father’s home (she was residing at a homeless shelter), and she did not have actual notice of the papers served on her.

Plaintiff’s third argument is that the motion is not accompanied by a proposed answer, which is expressly required by §473.5(b). The motion is denied without prejudice on this ground as well.

The motion is denied without prejudice. If Plaintiff chooses to re-file the motion, Plaintiff must ensure she references the correct code section in her moving papers, and must ensure she files a proposed answer as an exhibit to her motion.

Dated this 4th day of August, 2015

Hon. Elia Weinbach
Judge of the Superior Court