2013-00145898-CU-MC

County Of Sacramento vs. Kiran Rawat

Nature of Proceeding: Motion to Set Aside Default and Leave to Defend Action

Filed By: Masarweh, Susan R.

Plaintiff and Cross-Defendant County of Sacramento’s motion for order setting aside
default is granted.

County seeks to have the default entered against it on Defendant/Cross-Complainant
Raj Singh’s cross-complaint set aside pursuant to CCP § 473.5 on the basis that there
was no service of summons and cross-complaint and therefore no actual notice to
defend the action.

Pursuant to CCP § 473.5, a default may be set aside where service of the summons
did not result in actual notice to in time to appear and defend the action and that the
lack of notice was not created by avoiding service or inexcusable neglect. (CCP §
473.5(a), (b).) ” ‘[A]ctual notice’ in section 473.5 ‘means genuine knowledge of the
party litigant . . . .’ [Citation.]” (Tunis v. Barrow (1986) 184 Cal. App. 3d 1069, 1077.)

Here, County has shown that although Singh filed a proof of service of summons and
cross-complaint, no summons was issued by the Court and the cross-complaint was
not served on County. The proof of service indicates that a “Rick Wong” from the
Department of Human Assistance served the County, yet County’s counsel discovered
that no one named “Rick Wong” works at the DHA. County discovered the cross-
complaint when checking CCMS and also saw that default on the cross-complaint had
been entered on February 6, 2014. Further, while the cross-complaint was signed by
Attorney Oliver, County Counsel discovered that Attorney Oliver did not draft/sign the
cross-complaint. (Masarweh Decl. ¶¶ 2-8.) County counsel’s declaration is also
sufficient to show that the lack of notice was not created by avoiding service or
inexcusable neglect. (Id.) County has also included a proposed motion to strike which
it intends to file if the instant motion is granted.

Singh’s opposition lacks merit and lacks any factual showing. County has never
admitted to being served with the cross-complaint and there is no basis upon which
County may be estopped regarding any matter. Singh also makes the contention that
his case has somehow become a criminal matter and thus he is entitled to the
“requested relief.” The Court is entirely unclear what relief Singh is referring to but in
any event, he cannot obtain relief in opposition to County’s motion. Finally, Singh
argues that County’s Counsel can no longer represent County because Counsel is a
“witness”. Again, Singh cannot obtain affirmative relief in his opposition to County’s
motion and in any event, the contention is meritless as is not supported by any factual
showing. The Court did not consider Singh’s “second” opposition filed on May 19.
Such filing was not permitted by the Code of Civil Procedure. Nor did the Court
consider the “third” opposition filed on May 30.

Finally, this court has reiterated numerous times, it is this state’s “policy that cases
should be decided on their merits.” (Smeltzley v. Nicholson Mfg. Co. (1977) 18 Cal.3d
932, 936.)

The Court need not address County’s additional arguments regarding improper service
of the request for default or Singh’s ability to file a request for default without first filing
a substitution of attorney given he is now appearing in pro per.

As a result, the motion is granted. The default entered on February 6, 2014 on the
cross-complaint is set aside. County shall file and serve its proposed motion to strike
no later than June 17, 2014.

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