Case Number: VC067335 Hearing Date: January 21, 2020 Dept: SEC

MURRAY v. AMMARI

CASE NO.: VC067335

HEARING: 1/21/20

JUDGE: OLIVIA ROSALES

#11

TENTATIVE ORDER

Defendant Ammari’s motion to set aside entry of default and to vacate default judgment is DENIED.

Plaintiffs to give NOTICE.

Defendant Ammari moves to set aside default pursuant to CCP § 473.

The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken. (CCP § 473(b).)

Here, Defendant was served via substituted service on 10/12/18 upon Defendant’s daughter at Defendant’s residence with copies of the documents mailed by first-class, postage prepaid pursuant to CCP § 415.20. (Proof of Service and Declaration of Due Diligence filed on 11/30/18.)

A default was entered against Defendant on 2/25/19. Defendant’s motion, filed on 9/17/19, is untimely under CCP § 473(b) because it was filed more 6 months after entry of default.

Further, 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.) The notice of motion shall be served and filed within a reasonable time, but in no event exceeding the earlier of: (i) two years after entry of a default judgment against him or her; or (ii) 180 days after service on him or her of a written notice that the default or default judgment has been entered. (CCP 473.5(a).) A notice of motion to set aside a default or default judgment and for leave to defend the action shall be accompanied by an affidavit showing under oath that the party’s lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect. (CCP 473.5(b).)

Although CCP § 473.5 is governed by a two-year deadline, the motion is defective under CCP § 473.5 because Defendant had “actual notice” of the action. Plaintiffs’ counsel received a call from attorney Mansfield Collins in January 2019 regarding the action. (Correa Decl., ¶ 4.) Therefore, it appears Defendant had actual notice of the action.

Further, Defendant failed to attest that she lacked actual notice of the action. Instead, she merely declares that she “was never personally served” and did not “receive any papers by acknowledgment of receipt” concerning the lawsuit. (Ammari Decl., ¶ 2.) The declaration does not address substituted service and receipt of the documents via first-class mail pursuant to CCP § 415.20.

Defendant failed to file any Reply (due 5 court days before the hearing on 1/13/20) that addresses the points raised in opposition.

Accordingly, the motion is DENIED.