ROST, et al. vs GARCIA, et al.

A Stipulation and Appointment of Official Reporter Pro Tempore (CV/E-206) is required to be signed by each party, the private court reporter, and the Judge prior to the hearing, if not using a reporter from the Court’s Approved Official Reporter Pro Tempore list.

24CV020613: ROST, et al. vs GARCIA, et al. 07/15/2026 Hearing on Motion - Other to Set Aside Default and Default Judgment in Department 8D

Once the form is signed it must be filed with the clerk. If a litigant has been granted a fee waiver and requests a court reporter, the party must submit a Request for Court Reporter by a Party with a Fee Waiver (CV/E-211) and it must be filed with the clerk at least 10 days prior to the hearing or at the time the proceeding is scheduled if less than 10 days away. Once approved, the clerk will forward the form to the Court Reporter’s Office and an official reporter will be provided.

TENTATIVE RULING:

Defendant Mark Garcia’s, Helen Garcia’s and Helen Garcia’s, Trustee of the Garcia Revocable Living Trust Dated August 19, 2002 (collectively “Defendants”) motion to set aside default and default judgment if entered is ruled upon as follows.

Factual Background

Plaintiffs James Rost, Marierin Rost, David Caretto and Nicole Amirehsani (collectively “Plaintiffs”) initiated this action on October 10, 2024. Plaintiffs’ verified Complaint brings causes of action for (1) private nuisance, (2) trespass to land, (3) quiet title and (4) declaratory relief against Defendants.

On October 31, 2024 Plaintiff filed three proofs of service with the Court. The first proof of service represents that Defendant Mark Garcia was personally served with copies of the Summons and Complaint by a registered process server at 5412 Fair Oaks Blvd. Carmichael, California on October 19, 2024 at 10:30 am. The second proof of service indicates under line 3(a) that Mark Garcia was the party served and further indicates under line 3(b) Helen Garcia was served on behalf of an entity or as an authorized agent.

This second proof of service also represents that substituted service was effectuated by leaving the summons and complaint with Mark Garcia on October 19, 2024 at the 5412 Fair Oaks Blvd. address and that the documents were thereafter mailed to the same address. The third proof of service indicates under line 3(a) that “Trustee of Living Trust” was the party served and further indicates under line 3(b) Mark Garcia was served on behalf of an entity or as an authorized agent. This third proof of service also represents that substituted service was effectuated by leaving the summons and complaint with Mark Garcia on October 19, 2024 at the 5412 Fair Oaks Blvd. address and that the documents were thereafter mailed to the same address.

On December 2, 2024, Plaintiffs filed a request for entry of default as to Defendant Mark Garcia and default was entered as requested on that same date.

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

24CV020613: ROST, et al. vs GARCIA, et al. 07/15/2026 Hearing on Motion - Other to Set Aside Default and Default Judgment in Department 8D

On March 19, 2025, Plaintiffs filed a request for entry of default as to Defendant Helen Garcia and Defendant Helen Garcia, Trustee of Garcia Revocable Living Trust Dated August 19, 2002, however the Court rejected this request for default on June 13, 2025. The Court’s Notice of Rejection (dated June 13, 2025) indicated that there was “[n]o proof of service of summons and complaint on file for Helen Garcia” and further that “Proof of Service for Helen Garcia, Trustee of Garcia Revocable Living Trust Dated August 19, 2002 is defective as party is not named as sued.”

On July 17, 2025 Plaintiffs filed two additional proofs of service. The first July 2025 proof of service pertains to Helen Garcia and indicates that substituted service was effectuated on October 19, 2024 at 10:30 am on the Fair Oaks address by leaving the summons and complaint with Mark Garcia. This proof of service does not, however, indicate that the served documents were thereafter mailed to the place where the copies were left. The second July 2025 proof of service pertains to Helen Garcia, Trustee of Garcia Revocable Living Trust Dated August 19, 2002 and similarly represents that that substituted service was effectuated on October 19, 2024 at 10:30 am on the Fair Oaks address by leaving the summons and complaint with Mark Garcia.

Again, this proof of service also does not indicate that the served documents were thereafter mailed to the place where the copies were left. Rather, box 5(c) is checked which indicates that service was made “by mail and acknowledgement of receipt of service” and indicates that the documents listed on the proof of service were mailed to the Fair Oaks Blvd. address on October 19, 2024. The proof of service does not indicate that any copies of the “Notice of Acknowledgement of Receipt” or “postage-paid return envelope” were included in the mailing.

On July 29, 2025, Plaintiffs again filed a request for entry of default as to Defendant Helen Garcia and Defendant Helen Garcia, Trustee of Garcia Revocable Living Trust Dated August 19, 2002. This request for entry of default was once more rejected by the Court. The Court’s notice of rejection (dated August 28, 2025) indicated that the proofs of service for both Defendant Helen Garcia (as trustee and individually) were deficient as declarations of diligence and declarations of mailing is required for substitute service.

On September 9, 2025, Plaintiffs filed Declarations of Diligence as to service on Defendant Helen Garcia (individually and as trustee) as well as declarations of mailing of the summons and complaint on October 19, 2024 to the Fair Oaks Blvd. address.

On September 9, 2025, Plaintiffs, for a third time, filed a request for entry of default as to Defendant Helen Garcia and Defendant Helen Garcia, Trustee of Garcia Revocable Living Trust Dated August 19, 2002. Default was entered as requested on that same date.

On November 26, 2025, Plaintiffs filed a request for Court Judgment. On July 2, 2026 the

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

24CV020613: ROST, et al. vs GARCIA, et al. 07/15/2026 Hearing on Motion - Other to Set Aside Default and Default Judgment in Department 8D

request was for default judgment was rejected. The Court explained that default judgment was not entered because the Clerk of the Court “[t]he court will not render default judgment in a[n] action seeking to quiet title to real property. (Code Civ. Proc. § 764.010.) Please schedule a hearing as required by the code.” (July 2, 2026 Notice of Rejection.)

By motion filed on February 10, 2026, Defendants now move to set aside the entry of default, and default judgment if entered, against Defendants pursuant to Code of Civil Procedure sections 473 subdivision (b), and 473.5 on the grounds of “inadvertence, surprise, mistake, or excusable neglect” and “service of summons did not result in actual notice.” (Notice of Motion at 1:26-28.) Defendants’ notice of motion also states that Defendants seek “an order quashing the service of the Summons due to lack of jurisdiction to CPP § 418.10(a)(1).” (Id., at 1:24-25.)

Plaintiffs oppose.[1] Plaintiffs argue, inter alia, that this motion fails because Defendants had actual notice of the action, the service was valid, that Defendants’ conduct defeats the motion, Defendants did not act with reasonable diligence after discovering the case, and that Defendants have not shown a meritorious defense. Plaintiffs further request that the Court consider issuing terminating sanctions “for the submission of declarations containing verifiably false statements under penalty of perjury and fraud upon the tribunal.” (Opposition at 15:25-27.)

Plaintiffs’ Objection Nos. 18-20 are SUSTAINED. Plaintiffs’ remaining objections are OVERRULED.

Discussion

As discussed above, Defendants notice of motion states that they move to set aside the entry of default pursuant to Code of Civil Procedure sections 473 subdivision (b) and 473.5. Defendants’ notice of motion further requests an order quashing service.

Moreover, while not stated in their Notice of Motion, Defendants’ moving memorandum of points and authorities also presents argument that the Court should set aside default pursuant to Code of civil procedure section 473(d).

The Court addresses each request and/or ground turn, beginning with Code of Civil Procedure section 473.5.

Code of Civil Procedure section 473.5

Pursuant to Code of Civil Procedure section 473.5, a default may be set aside where service of the summons did not result in actual notice to a party in time to appear and defend the action and

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

24CV020613: ROST, et al. vs GARCIA, et al. 07/15/2026 Hearing on Motion - Other to Set Aside Default and Default Judgment in Department 8D

that the lack of notice was not created by avoiding service or inexcusable neglect. (Code of Civil Procedure § 473.5(a), (b).) Specifically, section 473.5(a)-(b) provides:

(a) 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.

(b) 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.

(Underline added for emphasis.) Code of Civil Procedure section 473.5 is designed to provide relief where there was proper service but such service did not result in actual notice. (E.g., Trackman v. Kenney (2010) 187 Cal.App.4th 175, 180.)

In support of the motion, submit the declarations of Mark and Helen Garcia. Mark Garcia avers that, on October 19, 2024, he was working as a general contractor at the home of Sirak Workneh, DDS, located in Wilton, California from approximately 9:00 to 3:00 p.m. (Declaration of Mark Garcia, (“M. Gacia Decl.”), at ¶¶ 2, 3.) Mr. Garcia further avers that he was never personally served with any documents relating to Sacramento Superior Court Case No. 24CV020613. (Id., at ¶ 5.)

Helen Garcia declares that on October 19, 2024, she was at her residence (located at 5412 Fair Oaks Blvd. Carmichael, CA) and under the care of Aivi Sangato as she suffered a stroke in June of 2022. (Declaration of Helen Garcia, (“H. Garcia Decl.”), at ¶ 6.) Ms. Garcia further avers that Mr. Garcia is her son, that he resided at her residence as of October 19, 2024, but on that particular date Mr. Garcia was working away from the residence. (Id., at ¶¶ 4, 5, 7.) Finally, Ms. Garcia avers that, “[a]t no time on October 19, 2024, was I or anyone at [her] home served any legal documents whatsoever.”

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

24CV020613: ROST, et al. vs GARCIA, et al. 07/15/2026 Hearing on Motion - Other to Set Aside Default and Default Judgment in Department 8D

While these declarations challenge the proofs of service on file, Defendants have failed to present any evidence that they did not receive actual notice of the action in time to appear and defend the action. Accordingly, the Court finds that Defendants have failed to submit an “affidavit showing under oath that [Defendants’] lack of notice in time to defend the action” and that Defendants lack of actual notice “was not caused by [their] avoidance of service or inexcusable neglect” as required by section 473.5 subdivision (b).

Furthermore, Defendants fail to submit a copy of the proposed answer as required by section 473.5. In this regard, the Court notes that Defendants indicate in their notice of motion that this motion is based upon their “Proposed Answer.” However, the Court cannot locate any proposed answer submitted by defendants in relation to this motion. To the extent that Defendants intended to rely on answers previously submitted by defendants and rejected by the Court, such rejected answers do not satisfy section 473.5’s requirement that a proposed answer be served and filed with the notice. As such, Defendants’ request for relief pursuant to section 473.5 also fails for this reason.

Code of Civil Procedure section 473 subdivision (b)

Code of Civil Procedure section 473 subdivision (b) provides in pertinent part:

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.

(Underline added for emphasis.)

Here, Defendants make no argument in their moving points and authorities regarding any mistake, inadvertence, surprise, or excusable neglect. Moreover, as set forth above, Defendants failed to include a copy of the proposed answer, as is required by Code of Civil Procedure section 473(b) in seeking relief from default. Accordingly, the relief pursuant to section 473(b) must be denied.

Motion to Quash Service of Summons

To the extent that Defendants’ request an order quashing the service of summons due to lack of

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

24CV020613: ROST, et al. vs GARCIA, et al. 07/15/2026 Hearing on Motion - Other to Set Aside Default and Default Judgment in Department 8D

jurisdiction pursuant to Code of Civil Procedure section 418.10 (a)(1), such a request is DENIED as Defendants failed to provide any legal authority or argument to support such an order. Indeed, a court need not consider an issue where reasoned, substantial argument and citation to supporting authorities are lacking. (Woods v. Horton (2008) 167 Cal.App.4th 658, 677; Addam v. Superior Court (2004) 116 Cal.App.4th 368, 373; People v. Gray (1998) 66 Cal.App.4th 973, 994.)

Code of Civil Procedure section 473, subdivision (d)

The Court briefly notes that Defendants’ moving memorandum of points and authorities argues that the court should set aside the defaults pursuant to Code of Civil Procedure section 473 subdivision (d). However, Defendants did not make this motion on the grounds of section 473 subdivision (d). Indeed, this particular code section is not mentioned at all in the notice of motion. Accordingly, to the extent that Defendants intended to also move to set aside their defaults pursuant to this section, such a request is DENIED without prejudice as it was not properly noticed.

Plaintiffs’ Request for Sanctions

To the extent that Plaintiffs attempt to request terminating sanctions in their opposition to this motion, such a request is DENIED as it is not properly before the Court. The request is also denied as moot since the underlying motion is denied and thus the underlying defaults remain in place at this time.

To the extent that Plaintiffs request sanctions pursuant to Code of Civil Procedure section 128, such a request is also DENIED.

To the extent that Plaintiffs make any additional request for monetary sanctions, such a request is also DENIED.

Disposition

Defendants’ motion to set aside default is DENIED as set forth herein.

This minute order is effective immediately. No formal order or other notice is required. (Code Civ. Proc., § 1019.5; Cal. Rules Court, rule 3.1312.)

[1] This motion was originally set to be heard on June 3, 2026. However, the Court

granted Plaintiffs’ ex parte application, thus accepting the Plaintiffs’ corrected, but late

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

24CV020613: ROST, et al. vs GARCIA, et al. 07/15/2026 Hearing on Motion - Other to Set Aside Default and Default Judgment in Department 8D

filed, opposition papers to this motion and continuing the hearing on this motion to today’s date. The Court further allowed Defendants to file and serve an amended reply by July 1, 2026. Defendants did not serve an amended reply in support of their motion.