Superior Court of California

County of Los Angeles

Southwest District

Torrance Dept. B

DENISE MCDERMOTT, Plaintiff,

Case No.: YC073018 vs. [Tentative] RULING

xxxxx T. xxxxxxx, et al., Defendants.

Hearing Date: August 9, 2019

Moving Parties: Defendant xxxxx T. xxxxxxx

Responding Party: Plaintiff Denise McDermott

Motion to Set Aside Entry of Default and Default Judgment

The court considered the moving and opposition papers.

RULING

The motion is DENIED.

BACKGROUND

On July 18, 2018, plaintiff Denise McDermott filed a complaint against xxxxx T. xxxxxxx, ind. and dba xxxxxxx Enterprises, Inc., and numerous other defendants for (1) breach of contract, (2) breach of fiduciary duty and obligation, (3) negligence, (4) negligent misrepresentation, (5) misrepresentation, (6) conspiracy, (7) conversion, and (8) fraud.

On December 7, 2018, a default was entered against defendant xxxxx T. xxxxxxx.

On December 28, 2018, default judgment was entered against defendants for $420,319.

LEGAL AUTHORITY

CCP §473

“The court may, upon 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).

“[T]he policy of the law is to have every litigated case tried upon its merits, and it looks with disfavor upon a party, who, regardless of the merits of the case, attempts to take advantage of the mistake, surprise, inadvertence, or neglect of his adversary.” Fasuyi v. Permatex, Inc. (2008) 167 Cal. App. 4th 681, 697 (citations and internal quotations omitted).

CCP § 473.5

CCP § 473.5(a) states, in relevant part: “When service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action. 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(b) requires that “a notice of motion to set aside a default or default judgment and for leave to defend the action shall designate as the time for making the motion a date prescribed by subdivision (b) of Section 1005, and it 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. The party shall serve and file with the notice a copy of the answer, motion, or other pleading proposed to be filed in the action.”

CCP §473.5(c) allows “upon a finding by the court that the motion was made within the period permitted by subdivision (a) and that his or her lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect, it may set aside the default or default judgment on whatever terms as may be just and allow the party to defend the action.”

DISCUSSION

Defendant xxxxxxx (self-represented) requests that the court vacate the default and default judgment entered against him. He cites to only CCP §473.

The proof of service dated November 8, 2018 indicates that defendant xxxxxxx was personally served at 16042 South 14th Drive, Phoenix, Arizona. This proof of service was missing the date and time. On December 6, 2018, plaintiff filed on amended proof of service indicating that xxxxxxx was served by personal service on August 28, 2018, at 6:00 p.m. by a certified private process server in Arizona.

In support of his motion, defendant contends only that he was not served with the summons and complaint. Defendant fails to provide any competent and admissible evidence that he was not served with the summons and complaint and that he did not have actual notice. The purported declaration is defective and not in conformity with CCP §2015.5 because it was not made under penalty of perjury and it was not declared under the laws of the State of California.

Further, the motion was not filed within a reasonable time. Defendant fails to state when he discovered the entry of default and default judgment.

The court finds that defendant has not met his burden of presenting sufficient evidence that service of summons did not result in actual notice. He has not sufficiently rebutted that he was personally served. He does not refute that he was properly served. Further, the evidence contradicts that he did not have actual notice or that he was properly served. See process server Mario Bertuccelli decl. filed on July 24, 2019. See also attorney Kevin Kensik decl.

The motion is therefore DENIED.