Notice Of Motion To Set Aside Entry Of Default And Default Judgment And To Dismiss Action For Failure To Bring To Trial Within Five Years, And For Violation Of Statute Of Limitations, And To Quash Service Of Summons
Set for Law and Motion/Discovery Calendar on Wednesday, March 04, 2026, Line 4.
Defendant Leon's motion to vacate the default entered on 6/25/24 is GRANTED. Defendant moves under Code of Civil Procedure section 473(d). Section 473(d) provides: "The 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."
Plaintiff fails to show that the first amended complaint was properly substitute served on defendant and the default is void. To effectuate substitute service under Code of Civil Procedure section 415.20(b), plaintiff must demonstrate inter alia reasonable diligence in attempting to personally serve the defendant. Here, the proof of service only shows one attempt to serve the first amended complaint personally before resorting to substitute service. (5/1/24 Proof of Service.) One attempt is insufficient and plaintiff fails to show substantial compliance. (See Bein v. Brechtel-Jochim Group, Inc. (1992) 6 Cal.App.4th 1387, 1391-1392 [" ' "Ordinarily, ... two or three attempts at personal service at a proper place should fully satisfy the requirement of reasonable diligence and allow substituted service to be made." ' "].)
The proof of service also refers to service attempts from the Sheriff. But that certification indicates that the Sheriff was attempting to serve the original complaint and summons, not the first amended complaint. That certification therefore fails to show reasonable diligence. The court declines Plaintiff's invitation to draw inferences contrary to the plaint text of the Sheriff's proof.
Defendant's merits-based arguments to dismiss this action are premature. A motion to vacate default is not the proper vehicle to raise such arguments.
For the 9:00 a.m. calendar, all attorneys and parties may appear in Department 302 remotely or in person. Remote hearings will be conducted by videoconference using Zoom. (Dept. 302 Zoom ID 160 409 7690; Passcode 516287.) To appear remotely at the hearing, go to the court's website at sfsuperiorcourt.org under "Online Services," navigate to "Tentative Rulings," and click on the appropriate link, or dial the corresponding phone number.
Any party who contests a tentative ruling must send an email to contestdept302tr@sftc.org with a copy to all other parties by 4pm stating, without argument, the portion(s) of the tentative ruling that the party contests. The subject line of the email shall include the line number, case name and case number. The text of the email shall include the name and contact information, including email address, of the attorney or party who will appear at the hearing.
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Counsel for the prevailing party is required to prepare a proposed order which repeats verbatim the substantive portion of the tentative ruling and must email it to contestdept302tr@sftc.org prior to the hearing even if the tentative ruling is not contested.
The court no longer provides a court reporter in the Law & Motion Department. Parties may retain their own reporter, who may appear in the courtroom or remotely. A retained reporter must be a California certified court reporter (CSR), for only a CSR's transcript may be used in California courts. If a CSR is being retained, include in your email all of the following: their name, CSR and telephone numbers, and their individual work email address. =(302/JMQ) | |