Case Number: KC069610 Hearing Date: October 17, 2018 Dept: O

Defendant Torrez’s motion to set aside default judgment is GRANTED. Defendant’s Answer is deemed filed this date.

Defendant Torrez moves to set aside default judgment pursuant to CCP 473.5.

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.) 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).) This section is designed to provide relief where there has been proper service of summons 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 C 462, 464–465.) 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 CA3d 891, 895.)

A summons may be served by personal delivery of a copy of the summons and of the complaint to the person to be served. (CCP 415.10.)

If a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served, as specified in Sections 416.60, 416.70, 416.80, or 416.90, a summons may be served by leaving a copy of the summons and complaint at the person’s dwelling house, usual place of abode… in the presence of a competent member of the household… at least 18 years of age, who shall be informed of the contents thereof, and by thereafter mailing a copy of the summons and of the complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left. Service of a summons in this manner is deemed complete on the 10th day after the mailing. (CCP 415.20(b).)

Two or three attempts to personally serve defendant at a “proper place” ordinarily qualifies as “reasonable diligence.” (Rodriguez v. Cho (2015) 236 CA4th 742, 750; American Express Centurion Bank v. Zara (2011) 199 CA4th 383, 389.)

Defendant Jerzan Torrez contends he was “never personally served with a summons and complaint… and did not receive a summons and complaint by mail or in any other manner.” (J. Torrez Decl., 1:24-27.)

In opposition, Plaintiff points out the proof of service shows that the summons and complaint were served by substituted service upon Carla Torrez, at Defendant’s residence, who is believed to be Defendant’s wife. (Katz Decl., Par. 4.) However, Plaintiff does not provide evidence in the record to support the existence of a close relationship between defendant and Carla Torres only to allege they are married. (Summers v. McClanahan (2006) 140 CA4th 403, 415.)

Moreover, the proof of service filed on 10/24/17, does not contain a corresponding declaration of diligence showing that the process server attempted personal service on prior occasions.

Accordingly, the Court finds that the proof of service is defective, and that Defendant likely did not receive actual notice of the action. Motion is GRANTED. Defendant’s Answer is deemed filed this date.