Motion to Set Aside Default Judgment
Case No. 25CV463602 Motion to Set Aside Default Judgment
I. BACKGROUND Plaintiff JPMorgan Chase Bank N.a. filed a complaint seeking damages in the amount of $5,388.65 against Defendant Jonathan Cu arising from an outstanding credit account. A request for entry of default was granted on June 9, 2025. On that same day, Plaintiff Bank submitted a default packet seeking entry of default in the amount of $5,388.65 against Defendant Cu. The judgment on default was not authorized and executed. On June 12, 2025, Defendant Cu attempted to file an answer, but received a rejection of filing based on default being granted.
Defendant Cu asserts he was not served with the Complaint package by Jose Anaya on April 24, 2025, as indicated in the proof of summons. (Declaration of Cu; Declaration of Sabahat; Exhibit 1). Defendant claims to have learned about Plaintiff’s complaint on or around May 23, 2025, and subsequently procured counsel and attempted to file an answer. (Defendant’s motion, p. 3). On September 5, 2025, Defendant filed a motion to set aside default judgment, and attached its motion was a proof of service indicating electronic service to Plaintiff’s counsel on August 29, 2025.
The motion is unopposed. Per Code of Civil Procedure section 1005(b) opposition papers were due on June 3, 2026. A failure to oppose a motion may be deemed a consent to the granting of the motion. California Rule of Court Rule 8.54c. A failure to oppose a motion may be deemed a consent to the granting of the motion. (California Rule of Court Rule 8.54(c)). Failure to oppose a motion leads to the presumption that the defendant has no meritorious arguments. (Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal.App.3d 481, 489).
The Court carefully reviewed the following: Defendant’s s notice motion and memorandum of points and authorities in support of the motion (totaling 7 pages); Declaration of Barzin Barry Sabahat with attached Exhibits 1-3 in support (totaling 18 pages); Declaration of Jonathan Cu and attached Exhibit A (totaling 7 pages); proof of services; and the pleadings.
II. LEGAL STANDARD A. CODE OF CIVIL PROCEDURE SECTION 473(B) Code of Civil Procedure section § 473(b) provides for both discretionary and mandatory relief. In terms of discretionary relief section 473(b), in pertinent part, reads as follows:
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The court may, upon any 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. . .
The mandatory provision of section 473(b) reads, in pertinent part, as follows:
Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.
The general underlying purpose is to promote the determination of actions on their merits. (Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830). Under this statute, an application for relief must be made no more than six months after entry of the judgment, dismissal, order, or other proceeding from which relief is sought and must be accompanied by an affidavit of fault attesting to the mistake, inadvertence, surprise or neglect of the moving party or its attorney. (Code of Civ. Proc., § 473(b); English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 143).
B. CODE OF CIVIL PROCEDURE 473.5 Code of Civil Procedure section 473.5(a) provides: “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.”
III. ANALYSIS Here, the Defendant seeks to set aside the basic entry of default that was approved by the court clerk on June 9, 2025. As noted above, Plaintiff Bank filed default packet seeking an entry of judgment in the amount of $5,388.65 was submitted on June 9, but was not authorized or executed. Defendant Cu repudiates that service was proper on April 24, 2025. (Defendant’s Motion, p. 5). “The description of the individual allegedly served with the Summons does not match Defendant Cu’s elderly father (5’2 and mid-70s) and Defendant Cu was at work in another city during the time of the alleged service.” (Id.; Declaration of Cu and Exhibit A).
Defendant Cu asserts that he became aware of the lawsuit on May 23, 2025, when he visited his parents, who he does not reside with. (Id). On June 12, 2025, Defendant Cu attempted to file an answer, but received a rejection of filing based on default being granted. (Declaration of Sabahat, p. 2).
On September 5, 2025, Defendant filed a motion to set aside default judgment stating that he will suffer irreparable harm if default is entered against him given the alleged service defects and having the ability to litigate the case on the merits. (Defendant’s motion, p. 5). Conversely, Defendant asserts that the plaintiff will not suffer prejudice and it will be in the same position prior to the entry of default. (Id.). Defendant also asserts that the motion was filed within the required timeframe. (Id.).
The motion is unopposed. A failure to oppose a motion may be deemed a consent to the granting of the motion. California Rule of Court Rule 8.54c. A failure to oppose a motion may be deemed a consent to the granting of the motion. (California Rule of Court Rule 8.54(c)). Failure to oppose a motion leads to the presumption that the defendant has no meritorious arguments. (Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal.App.3d 481, 489).
An entry of default was entered by the court clerk on June 9, 2025. Eighty-eight days later on September 5, 2025, Defendant filed a motion to set aside the basic entry of default. Thus, the Court finds that the motion was timely Purusant to Code of Civil Procedure section 473(b). Given the policy preferring that matters be litigated on the merits, the Court will grant the motion.
IV. CONCLUSION Based on the foregoing, and the motion being unopposed, Defendant’s motion to VACATE the basic entry of default entered by the clerk on June 9, 2025 is GRANTED. The Defendant is to file an Answer within 30 days of this hearing date.
The Court will prepare the formal Order.
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