Capital One N.A. vs. Montejano, Elaine

Case No.: VCL318184 Date: July 23, 2026 Time: 8:30 A.M. Dept. 1-The Honorable David C. Mathias Motion: Defendant's Motion for Relief from Default Tentative Ruling: To deny the motion

Facts

In this matter, Plaintiff sues Defendant Elaine Montejano for a single cause of action for breach of contract, alleging $14,779.15 in damages.

On March 21, 2025, Plaintiff filed a proof of service purporting to demonstrate personal service of the summons and complaint occurred on March 18, 2025 at 4:18 pm at 1600 S Greene Ave Apt 133, Dinuba, CA as follows: "ELAINE MONTEJANO, I delivered the documents to ELAINE MONTEJANO with identity confirmed by subject stating their name. The individual accepted service with direct delivery. The individual appeared to be a black haired Hispanic female contact 25-35 years of age, 5'6"-5'8" tall and weighing 160-180 lbs." A registered California process server completed the proof of service.

On March 18, 2026, default was entered. On March 18, 2026, default judgment was entered in the amount of $15,222.76.

On June 23, 2026, Defendant filed this motion to set aside default and default judgment. In support, Defendant states "The proof of service states documents were served to me on 03-18-25 at 4:18 pm which is untrue. I was not home at the time and commuting from work out of town during this time."

Notice of this motion was provided to Plaintiff's attorney. However, it is unclear if this motion was served on Plaintiff. No opposition appears to have been filed.

Authority and Analysis

The Court has broad discretion to set aside the entry of default, default judgment, or a dismissal, but that discretion can be exercised only if the defendant establishes a proper ground for relief, by the proper procedure and within the set time limits.

Code of Civil Procedure section 473(b) provides, in relevant 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.

Here, there is not issue as to the timing of the motion.

"A 'mistake' exists when a person, under some erroneous conviction of law or fact, does, or omits to do, some act which, but for the erroneous conviction, he would not have done, or omitted. It may arise either from unconsciousness, ignorance, forgetfulness, imposition, or misplaced confidence." (Salazar v. Steelman (1937) 22 Cal.App.2d 402, 405, 410.)

"Surprise" is defined as "some condition or situation in which a party to a cause is unexpectedly placed to his injury, without any default or negligence of his own, which ordinary prudence could not have guarded against." (Miller v. Lee (1942) 52 Cal.App.2d 10, 16.)

Further, "excusable neglect" has been defined as "neglect that might have been the act or omission of a reasonably prudent person under the same or similar circumstances." (Ebersol v. Cowan (1983) 35 Cal.App.3d 427, 435.)

"Finally, as for inadvertence or neglect, '[t]o warrant relief under section 473 a litigant's neglect must have been such as might have been the act of a reasonably prudent person under the same circumstances. The inadvertence contemplated by the statute does not mean mere inadvertence in the abstract. If it is wholly inexcusable it does not justify relief.' " (Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1206.)" (Henderson v. Pacific Gas & Electric Co. (2010) 187 Cal.App.4th 215, 230.)

However, under Evidence Code section 647: "[t]he return of a process server registered pursuant to Chapter 16 (commencing with Section 22350) of Division 8 of the Business and Professions Code upon process or notice establishes a presumption, affecting the burden of producing evidence, of the facts stated in the return." (Evid. Code Sec. 647.)

Under Evidence Code section 604: "[t]he effect of a presumption affecting the burden of producing evidence is to require the trier of fact to assume the existence of the presumed fact unless and until evidence is introduced which would support a finding of its nonexistence, in which case the trier of fact shall determine the existence or nonexistence of the presumed fact from the evidence and without regard to the presumption. Nothing in this section shall be construed to prevent the drawing of any inference that may be appropriate." (Evid. Code Sec. 604.)

Here, the proof of service establishes the rebuttable presumption of service. The motion contains an insufficient explanation to rebut the presumption established by the proof of service.

Next, subsection (b) additionally requires the filing of "a copy of the answer, motion, or other pleading proposed to be filed in the action." No such document appears lodged with the motion.

Therefore, the Court denies the motion.

If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order.

Court reporters are usually not available for law and motion matters in the civil division. The parties and counsel must provide their own reporter if they want a transcript of the proceedings.

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