Motion to Set Aside Default
Service of Motion
The Civil Procedure Code requires that all motion papers must be served at least 16 court days before the hearing on the motion. (See Code Civ. Proc., § 1005, subd. (b).)
In addition, the “[p]roof of service of the moving papers must be filed no later than five court days before the time appointed for the hearing.” (Cal. Rules of Court, rule 3.1300(c).)
The court records reveal that proof of service of the motion papers has been filed.
In addition, Plaintiff has not filed an opposition or response to the motion, implying that it has not received the motion papers.
In fact, the court records reveal that on May 22, 2026, Plaintiff’s Counsel informed Defendant that Plaintiff had not received the motion papers. (See ROA #70, Exh. D at p. 1. [“Dear Ms. Cano, I understand you have filed a motion to set aside the default. We have not received a copy of the motion, so please send it to us at your first available opportunity. You may email or mail it ot [sic] our offices.”].)
Therefore, the court will continue the hearing on this motion and order that Defendant serve the motion papers and notice of this ruling on Plaintiff and file a proof of service showing service.
The court may deny the motion if Plaintiff fails to serve the motion papers and notice of ruling, and file a proof of service, as required.
Plaintiff shall give notice of this ruling.
8 National Funding, Motion to Set Aside Default Inc. vs. R&R Construction and Defendants Ruben Reveles’ and R&R Construction and Real Real Estate Estate Development, Inc.’s Motion to Set Aside Default and Development, Inc. Default Judgment is DENIED.
Pending Motion
Defendants Ruben Reveles and R&R Construction and Real Estate Development, Inc. move to set aside the default and default judgment entered against them in this case, pursuant to Civil Procedure Code section 473.5. (See ROA #13, #23.)
Setting Aside Default
Civil Procedure Code section 473.5 provides that:
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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.
(Code Civ. Proc., § 473.5, subd. (a).)
A motion brought pursuant to Section 473.5 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” as well as “a copy of the answer, motion, or other pleading proposed to be filed in the action.” (Code Civ. Proc., § 473.5, subd. (b).)
Defendant Ruben Reveles
In this case, Plaintiff filed proofs of service showing that both Defendants were served by substituted service when the summons and complaint were left with “Deanna,” who was identified as a competent member of the household, on October 31, 2024, and then mailing the documents on November 5, 2024. (See ROA #10, #11).
Defendant Ruben Reveles provides a declaration in which he states that: “I did not respond in the prescribed time because I was never personally served the Summons and Complaint.” (Decl. of Def., Ruben Reveles, ¶ 5.)
Defendant Ruben Reveles also declares that: “I was unaware of the court proceeding because I was never personally served any documents.” (Id., ¶ 9.)
The court previously informed Defendants that Defendant Ruben Reveles’ declaration was not sufficient because it did not state that he did not receive “actual notice in time to defend the action,” as required by Section 473.5. (See ROA #54 at p. 3.)
Defendant Ruben Reveles’ declaration only states that he was not personally served.
As the court previously explained:
However, personal service is not the issue because the proofs of service show that both Defendants were
properly served by substituted service. (See Code Civ. Proc., § 415.20.)
Further, the declaration does not affirm that Defendant Ruben Reveles’ lack of notice was not caused by his avoidance or service or inexcusable neglect. In fact, he does not explain why he did not receive actual notice even though substituted service was effectuated in this case.
(Ibid.) The court continued the hearing on the motion to allow Defendants to supplement the declaration, but warned that “unless Defendants provide evidence sufficient to meet the requirements of Section 473.5, the court must deny the motion.” (Ibid.)
Since the court continued the hearing on the motion more than 3 1⁄2 months ago, Defendants have not supplemented the declaration.
Therefore, for the reasons stated above and in its prior ruling, the court will deny the motion to set aside default.
Corporation Must Be Represented By Counsel
In its prior ruling, the court also informed Defendants that “Defendant R&R Construction and Real Estate Development, Inc. appears to be a corporation, which cannot represent itself and must retain counsel to act on its behalf in court.” (See ROA #54 at p. 2.)
The court also warned that “[t]herefore, unless Defendant R&R Construction and Real Estate Development, Inc. is represented by counsel, the court must deny the motion as to that corporation.” (Ibid.)
Since the court’s last ruling, no counsel has appeared in this case to represent Defendant R&R Construction and Real Estate Development, Inc., nor has the corporation presented any evidence that it is represented by counsel in this case.
Thus, the court will deny the motion to set aside default as to Defendant R&R Construction and Real Estate Development, Inc.
The court clerk shall give notice of this ruling.
9 Kelley vs. Sunshine Motion for Summary Adjudication Behavioral Health