Defendant’s Motion to Set Aside Judgment
11. Calvary SPV I LLC v. Smith, Case No. CIVSB2437709 Defendant’s Motion to Set Aside Judgment 7/21/26, 9:00 a.m., Dept. S-17
Tentative Ruling The Court would DENY.
Case Summary This is a collections case. Plaintiff alleges Defendant maintained a credit card account. However, Plaintiff stopped paying on the account on September 6, 2023, leaving an open balance that is the subject of this suit.
On December 23, 2024, Plaintiff filed suit for breach of contract. Relevant here, on January 27, 2025, Plaintiff filed a proof of service (POS) stating that Defendant was personally served at her home address. The POS indicates personal service on January 26, 2025.
Following service, Plaintiff took Defendant’s default, and a default judgment was entered on June 18, 2025. Now, over a year after that default judgment, Defendant filed this instant motion seeking to set aside the judgment.
Analysis
Defendant brings this motion titled “motion to set aside judgment” pursuant to Code of Civil Procedure section 473(b), seeking relief judgment and leave to file a responsive pleading. While Defendant admits to having been properly served in the lawsuit, she asserts that she erroneously believed she had until January of 2026 to answer. Defendant asserts hearsay that some unnamed source in the clerk’s office told her she had until “January 23, 2026.” (Smith Decl., ¶3.) On that basis, she alleges she failed to act to timely respond to the Complaint. It is unclear why she would have believed she had nearly a year after personal service to respond.
Problematically, Section 473(b) allows relief when a “party’s legal representative” engages in “mistake, inadvertence, surprise, or excusable neglect.” (Code Civ. Proc., § 473(b).) Here, there is no attorney at issue and, therefore, this is not the correct basis for relief. It appears the more correct code would have been Section 473.5.
To set aside a judgment pursuant to Code of Civil Procedure section 473.5(a), the motion for relief must be served and filed within a reasonable time, but in no event may exceed the earlier of: (1) two years after entry of a default judgment; or (2) 180 days after service of written notice that default or default judgment entered.
Importantly, Civil Code section 1788.61 provides additional time when the case is brought by a debt purchaser, which Plaintiff is here: That Section requires the motion to be brought the earlier of either (1) six years after the entry of default or (2) 180 days after the first actual notice of the action.
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Here, the POS shows actual notice on January 26, 2025. Thus, the 180-day timeline would have run on July 25, 2025 – over a year ago. Thus, the motion is untimely. *** *** ***
13. Angelus Metal Finishing & Polishing Co. v. Duoecon Inc., et al, Case No. CIVSB2438110 Plaintiff Angelus Metal’s Motion for Summary Judgment 7/21/26, 9:00 a.m., Dept. S-17
Tentative Rulings As to Plaintiff’s Request for Judicial Notice: The Court would GRANT notice of the Stipulation for Entry of Judgment in LLTSB2400047 per Evidence Code section452(d).
As to the Motion: The Court would GRANT1 this unopposed motion for summary judgment against Defendant Monese and defaulted Defendant DuoEcon for a monetary judgment of $97,219.98. Plaintiff to submit a judgment in accordance with the findings herein within the next ten court days.
Case Summary This litigation concerns recovery of owed rent. Plaintiff alleges that on August 8, 2022, the parties entered into a lease for commercial property. Plaintiff alleges that, by April 1, 2024, Defendants failed to pay rent, and Plaintiff initiated an unlawful detainer action (LLTSB2400047). That agreement had Defendants agree to give up possession; allowed Plaintiff to retain the security deposit; and alleged Plaintiff to pursue owed rent and damages through separate litigation.
As such, on December 30, 2024, Plaintiff initiated this lawsuit for breach of contract. Plaintiff now moves for summary judgment. Defendant DuoEcon is in default and thus this motion constitutes a “prove up” for default purposes. Defendant Monese has answered the Complaint but failed to oppose this instant motion for summary judgment.
Statement of Law Summary judgment is proper where there is no triable issue as to any material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c(c).) The analysis requires three steps: First, the court must identify the issues framed within the pleading. (AARTS Productions, Inc. v. Crocker National Bank (1986) 179 Cal.App.3d 1061, 1064-
1 Materials Considered: Complaint, Lease (Exh. A to Complaint); Answer; MSJ; Separate Statement of Undisputed Facts; Request for Judicial Notice; Arnold Declaration; Deemed Admitted FRAs (Exhs. D & F); Stipulated Judgment (Exh. G); 3-Day Notice to Pay or Quit (Exh. H); and Undisputed Material Facts: 1-2, 6-19.
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