Motion to Set Aside/Vacate Default and Judgment
a) Irreconcilable differences between counsel and client; and b) Failure of communication Additionally, all required judicial counsel forms (MC- 051, MC-052, and MC-053) relating to the notice of motion, declaration and proposed order have been utilized and properly served. [CRC 3.1362(a)-(d).]
However, it is unclear whether this Court has acquired knowledge of the Plaintiff Client’s address. Attorney failed to list the client’s address in either the motion or proposed order (ROA 191). The client’s address, as listed on the proof of service is Michael McClane 3775 Leticia Street, Chino, CA 91710 (ROA 188).
Motion is GRANTED. Attorney is to update the proposed order with client’s address and upcoming matters. Attorney to give notice. Attorney is relieved from acting as counsel of record when proof of service of order (MC-053) signed order has been filed herein.
106 Kinecta Federal Credit Union vs. Ogi
25-01509319 Motion to Set Aside/Vacate Default and Judgment Defendant, Jeffrey Masayuki Ogi (“Defendant”), moves for an order setting aside and vacating the entry of default and default judgment entered against him on January 31, 2026. The subject default was entered on January 30, 2026. (ROA 17.) The default judgment was entered on March 16, 2026. (ROA 37.)
On May 27, 2026, Plaintiff, Kinecta Federal Credit Union (“Plaintiff”), timely filed proof of service of the opposing papers which show proper service on Defendant’s counsel pursuant to the Court’ May 26, 2026 Minute Order. (ROA 66.)
Defendant contends that he was not properly served with the summons and Complaint because attorney Matthew E. Hess (“Hess”) was not his attorney for this matter, and that Defendant did not have actual notice of the lawsuit. Defendant asserts that the entry of default and judgment is void under Code of Civil Procedure section 473(d) because Plaintiff failed to serve Defendant in compliance with Code of Civil Procedure sections 415.10 and 415.20. Defendant also contends that the entry of default and any default judgment should be set aside pursuant to the Court’s equitable powers, pursuant to Code of Civil Procedure section 473.5, and pursuant to the discretionary and mandatory provisions of Code of Civil Procedure section 473(b).
Plaintiff contends that the motion itself confirms that Hess sent creditor communications on Defendant’s behalf and asked to future correspondence be directed to him. Specifically, Plaintiff contends that on April 6, 2025, Hess sent Plaintiff’s counsel a written letter expressly confirming that he represented Defendant in this very collections matter and directing that all future communications be sent to him; that Plaintiff was entitled to rely on that written representation and routing instruction; that when Hess received Plaintiff’s communications, Defendant was deemed to have received those communications as a matter of law; and that Defendant cannot plausibly claim lack of notice when Hess designated himself as the exclusive recipient of communications and barred Plaintiff from having direct contact with Defendant.
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Plaintiff asserts that relief under Code of Civil Procedure sections 473.5 and 473(b), and equitable relief are not justified.
Relief Under Code of Civil Procedure section 473(d) Code of Civil Procedure section 473(d) states, “[t]he court, may upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order.”
A judgment which is void on its face is subject to setaside at any time. (Cruz v. Fagor America, Inc. (2007) 146 Cal.App.4th 488, 496.) A judgment or order that is invalid on the face of the record, or when the uncontested extrinsic evidence shows that the defendant was never properly served, may be set aside with no time limit within which the motion must be made. (California Capital Ins. Co. v. Hoehn (2024) 17 Cal.5th 207, 215.) A section 473(d) motion to vacate a judgment that is void for lack of proper service is not subject to a two-year limitation. (Id. at p. 225.)
“In determining whether an order is void for purposes of section 473, subdivision (d), courts distinguish between orders that are void on the face of the record and orders that appear valid on the face of the record but are shown to be invalid through consideration of extrinsic evidence.” (Pittman v. Beck Park Apartments, Ltd. (2018) 20 Cal.App.5th 1009, 1020 (“Pittman”).) “ ‘This distinction may be important in a particular case because it impacts the procedural mechanism available to attack the judgment [or order], when the judgment [or order] may be attacked, and how the party challenging the judgment [or order] provides that the judgment [or order] is void.’ [Citation.]” (Id. at pp. 1020-1021.) “An order is considered void on its face only when the invalidity is apparent from an inspection of the judgment roll or court record without consideration of extrinsic evidence. [Citations.]” (Id. at p. 1021.) “There is no time limit to attack a judgment void on its face. [Citations.]” (Ibid.)
Here, Defendant seeks to show improper service through extrinsic evidence. The proof of service of summons provides that Defendant was served by substitute service on the Law Offices of Matthew E. Hess, who “is the authorized agent” for Defendant. (ROA 12.) Defendant provides that Hess agreed to help stop the collection communications, but that Hess did not represent Defendant with regards to this lawsuit, and did not have authorization to accept service on Defendant’s behalf. (Declaration of Jeffrey Masayuki Ogi (“Ogi Decl.”), ¶¶ 4, 7.) Defendant also states, “No one served me or anyone in my household with a summons, complaint, or any other papers having to do with this lawsuit.” (Id., ¶ 5.)
Plaintiff’s opposition does not specifically address relief under Code of Civil Procedure section 473(d), but disputes the premise that Hess was not an authorized agent of Defendant. Plaintiff cites to a communication dated April 6, 2025, authored by Hess and directed to Plaintiff’s counsel which states, in part: “I am the attorney for Jeff Ogi.” (Ex. 1 to Declaration of Sabaa “Darius” Ghomashchi.) Said communication also states, “Pursuant to 15 U.S.C. § 1692c(a)(2), please direct all future communications regarding this matter to me. You are not authorized to communicate with Mr. Ogi directly.” (Ibid.)
Although Hess’s letter dated April 6, 2025, provides that “all future communications regarding this matter” should be directed to him, it does not state that any summons and Complaint should be served on Hess, and there appears to be no attempt to ensure that Hess was authorized to accept service on behalf of Defendant before filing the Complaint nearly five months later, especially after there was no response to Plaintiff’s June 27, 2025 letter. As there is no dispute that Plaintiff did not otherwise serve Defendant directly in any matter, it appears that the entry of default and entry of default judgment are void for lack of proper service. The Court GRANTS Defendant’s motion to set aside and vacate entry of default and default judgment under Code of Civil Procedure section 473(d).
Relief Under Code of Civil Procedure section 473.5 Defendant also contends that relief is available under Code of Civil Procedure section 473.5 as he was not served with the summons and Complaint, did not have actual notice of this lawsuit, and that the instant motion was brought timely. Plaintiff contends that Defendant had notice as Hess was expressly designated as counsel specifically for this action.
“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 the party in the action, the party may serve an file a notice of motion to set aside the default or default judgment and for leave to defend the action.” (Code Civ. Proc. § 473.5(a).) “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; or (ii) 180 days after service on the party of a written notice that the default or default judgment has been entered. (Code Civ.
Proc. § 473.5(a).) Said motion must 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.” (Code Civ. Proc. § 473.5(b).) “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.” (Code Civ. Proc. § 473.5(b).)
“Upon a finding by the court that the motion was made within the period permitted by subdivision (a) and that the party’s lack of actual notice in time to defend the action was not caused by the party’s 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.” (Code Civ. Proc. § 473.5(c).) “[T]he reference in Code of Civil Procedure section 473.5 to ‘actual notice’ means genuine knowledge of the party litigant and does not contemplate notice imputed to a principal for an attorney’s actual notice.” (Rosenthal v. Garner (1983) 142 Cal.App.3d 891, 895.)
Here, the instant motion is timely brought on March 17, 2026, less than three months after entry of default and just one day after entry of default judgment, and was concurrently filed with Defendant’s [Proposed] Answer. Defendant provides that no one served him or anyone in his household with a summons or complaint, that neither Plaintiff nor its attorneys notified Defendant that the lawsuit was filed at any point before they obtained a judgment, that Hess did not have authorization to accept service on Defendant’s behalf, and that Hess did not notify Defendant that a response to the lawsuit was required. (Ogi Decl., ¶¶ 5-8.) This supports that Defendant’s lack of actual notice in time to defend this action was not caused by his avoidance of service or inexcusable neglect.
As to Hess, Hess could not reasonably have been Defendant’s counsel for this action before the action was filed. However, even assuming arguendo that Hess’s statement that he was Defendant’s attorney in the “matter” was construed as encompassing any possible lawsuit, notice to Hess should not be imputed to Defendant. In addition, Hess’s email informing Defendant that Plaintiff had tried to serve Hess, but that it “wasn’t valid service”, and the failure to inform Defendant that Defendant needed to respond constitutes inexcusable neglect constitutes positive misconduct. (See Rosenthal v.
Garner (1983) 142 Cal.App.3d 891, 897-898 [even assuming that the party’s attorney in prior action represented party, sending a copy of the summons and complaint to attorney did not constitute actual notice, nor should the inexcusable neglect of attorney in failing to communicate with party about the filing of the litigation be imputed on party].) Thus, relief is also available under Code of Civil Procedure section 473.5.
Based on the foregoing, the Court GRANTS Defendant’s motion to set aside and vacate entry of default and default judgment under Code of Civil Procedure sections 473(d) and 473.5. The default entered on January 30, 2026, and the default judgment entered on March 16, 2026, are set aside and vacated. Defendant to file and serve their proposed Answer within 10 days. In light of the foregoing, the Court declines to address Defendant’s additional arguments that the entry of default and default judgment should be set aside and vacated under Code of Civil Procedure section 473(b), or based on equitable relief. Defendant to give notice
107 Neri Bahena vs. Gregory’s Pallet Inc.
22-01281126 1. Motion for Terminating Sanctions In light of Plaintiff’s pending motion for reconsideration of this Court’s April 14, 2026, ruling on demurrer, the Motion for Terminating Sanctions is CONTINUED to 09/15/2026 at 10:00 a.m. in Department C25. Moving party to give notice.
2. Case Management Conference continued to 09/15/2026 at 10:00 AM Clerk to give notice.