Case Number: NC061609 Hearing Date: December 11, 2018 Dept: S27

Defendant James Fern moves to vacate the default entered against him by Plaintiffs on April 27, 2018. He contends that he was not served or alternatively that his default was due to excusable neglect or mistake.

The proof of service of the summons and complaint in the court’s file reflects Defendant was personally served by a Sheriff’s Deputy at the George Deukmejian Courthouse on March 9, 2018.

Mr. Ferns submits a declaration stating he is familiar with the Plaintiff Milyan Moore to whom he loaned money. When Moore defaulted on repayment, Ferns filed a small claims case against Moore. He states Moore threatened to sue him. He became “concerned” about the threat and traveled to the Deukmejian courthouse to investigate whether “steps had been taken towards carrying out his threat.” He was directed by a clerk to an unidentified room on the second floor where a female court employee who was not in Sheriff’s uniform gave him papers relating to the present suit. He returned to the civil clerk’s office to verify there was no assertion he had been served. He was “advised” by an unidentified individual that he had not

been served but he was provided with unspecified documents from the court file. Ferns took no further action because he did not believe he had been served.

On August 6, 2018 he received an envelope with “various documents” which he presented to his attorney “and learned that a default had been taken based on an alleged service from his receipt of the documents at the Long Beach Superior Court.”

The court disregards his assertion that the case is frivolous.

The court has no reason to question the veracity of the proof of service signed by a Sheriff’s Deputy. It reflects an unsuccessful attempt to serve Defendant on March 7, 2018 at 840 N. Hillside Drive in Long Beach and that on March 9, 2018 “Deft [sic] came into Long Beach Office and Picked Up Process.”

The court is skeptical of Plaintiff’s declaration because there is no Sheriff’s office on the second floor of the courthouse. A party picking up process would have to go to the fourth floor.

The court finds that Plaintiff was duly served, but that does not end the inquiry because he also seeks discretionary relief. Plaintiff states he is 82 years old and it is possible he was confused by the events of the day.

The opposition is cursory and while admitting CCP §473(b) “provides the court with wide discretion in granting relief, it is not in the interest of justice for the court to grant relief to every Defendant who fails to answer . . . .” This is nominally true, but the court does not grant relief to “every Defendant.” The issue is whether relief should be granted to this Defendant and Plaintiff offers no substantive reason why relief should be denied. The law prefers resolution of the cases on the merits and Plaintiff timely sought relief.

The court grants the motion under the discretionary relief provisions of CCP §473(b). The proposed answer shall be deemed filed and served this date. The court sets a case Management Conference for February 13, 2018. Defendant is ordered to serve notice.