CLJ497811 CACH, LLC VS. ARIES DELACRUZ

CACH, LLC ARIES DELACRUZ
BRYANT BURNSTAND

DEFENDANT ARIES DELACRUZ’ MOTION TO SET ASIDE DEFAULT JUDGMENT
TENTATIVE RULING:
Defendant Aries Delacruz’s Motion to Set Aside Default Judgment, filed pursuant to Code Civ. Proc. §§ 473(b) and 473.5, is DENIED.
Under both statutes, the motion is untimely (§ 473(b) motion “shall” be filed within six months of entry of default; § 473.5 motion “shall” be filed within two years of Judgment).
In addition, § 473.5(b) requires a sworn affidavit(s) demonstrating that Defendant’s alleged lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect. No sworn declarations were filed with the moving papers.
Finally, although the Court need not reach this issue to deny the motion, Defendant’s contention that the 2010 Proof of Service is defective because it does not state the city of service (Daly City) lacks merit. , Defendant cites no authority supporting this argument. Nor is the argument compelling, because the POS identifies both the address of service and the zip code (940141513). 94014 is a zip code in Daly City.

If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to Rule 3.1308(a)(1), adopted by Local Rule 3.10, effective immediately, and no formal order pursuant to Rule 3.1312 or any other notice is required as the tentative ruling affords sufficient notice to the parties.

CLJ497811 CACH, LLC VS ARIES DELACRUZ

CACH, LLC ARIES DELACRUZ
BRYANT BURNSTAND

DEFENDANT ARIES DELACRUZ’ MOTION TO QUASH SERVICE OF SUMMONS AND COMPLAINT
TENTATIVE RULING:
The Motion to Quash Service of Summons and Complaint by Defendant Aries Delacruz is DENIED. Where a Defendant’s default has been entered, the Court lacks jurisdiction to rule on any motion filed by the defaulting Defendant except a motion for relief from default. [ Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc. (1984) 155 Cal.App.3d 381, 385-386]. In light of the fact that the Defendant’s motion to set aside the 2010 default has been denied, the Court lacks jurisdiction to rule on any other motion filed by Defendant.

If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to Rule 3.1308(a)(1), adopted by Local Rule 3.10, effective immediately, and no formal order pursuant to Rule 3.1312 or any other notice is required as the tentative ruling affords sufficient notice to the parties.