Motion to Set Aside Default Judgment
Case No. 25CV465371 Motion to Set Aside Default Judgment
I. BACKGROUND This credit card collections case stems from Plaintiff America Express National Bank (“Bank”)’s Complaint filed on May 7, 2025 alleging two causes of action for breach of contract against Defendant Maryam Rafipour (“Rafipour”). On October 6, 2025, a basic entry of default was entered against the Defendant. On March 27, 2026, the Honorable Roberta Hayashi authorized a default judgment in favor of the Bank in the amount of $53,198.27 against Defendant Rafipour, while her motion for relief of default and default judgment was filed.
On December 15, 2025, Defendant Rafipour filed a motion for relief to vacate the default and judgment. The motion was accompanied by a filed proof of service indicating mail service to defense counsel on that same day. The court notes that while the proof of service is file stamped for December 15, 2025, the process server did not execute the date.
The motion is unopposed. A failure to oppose a motion may be deemed a consent to the granting of the motion. (California Rule of Court Rule 8.54(c)). Failure to oppose a motion leads to the presumption that the defendant has no meritorious arguments. (Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal.App.3d 481, 489). Plaintiff Bank filed a non-opposition to the defendant’s motion seeking to vacate the default judgment. 9
Additionally, Plaintiff Bank requested a dismissal of the second cause of action alleged in its Complaint based on verification that there was identify theft, but requests that the first cause of action remain pending further investigation and seeks a further case management conference approximately 180 days out.
The Court has carefully reviewed the moving papers, including: notice and memorandum of points and authorities in support of the defendant’s motion to vacate the default judgment and attached Exhibits A-C (totaling 17 pages); proposed Answers (Exhibit C, at p. 14-17); Declaration of Maryam Rafipour (totaling 2 pages); Plaintiff’s Non- Opposition (totaling 2 pages); proof of services; and the pleadings.
I. LEGAL STANDARD A. CODE OF CIVIL PROCEDURE SECTION 473(B) Code of Civil Procedure section § 473(b) provides for both discretionary and mandatory relief. In terms of discretionary relief section 473(b), in pertinent part, reads as follows:
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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. . .
The mandatory provision of section 473(b) reads, in pertinent part, as follows:
Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.
The general underlying purpose is to promote the determination of actions on their merits. (Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830). Under this statute, an application for relief must be made no more than six months after entry of the judgment, dismissal, order, or other proceeding from which relief is sought and must be accompanied by an affidavit of fault attesting to the mistake, inadvertence, surprise or neglect of the moving party or its attorney. (Code of Civ. Proc., § 473(b); English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 143).
B. CODE OF CIVIL PROCEDURE 473.5 Code of Civil Procedure section 473.5(a) provides: “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.”
C. CODE OF CIVIL PROCEDURE 473(D) Under Code of Civil Procedure section 473(d), “[t]he 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.”
III. ANALYSIS Here, the defendant in pro per seeks to vacate the judgment under Code of Civil Procedure section 473(c)(2) and states the grounds as clerical mistakes in the judgment. (Motion, p. 1-3). This section is miscited and refers to section 473(d). However, the Court notes that there is no clerical mistake, thus defense cite the wrong section of the code, and seeks to set aside default. However, based on the substance of the motion, the Court notes that Code of Civil Procedure section 473.5 would apply, as the defendant argues that service was not properly effected. (Id., at p. 2). Defendant Rafipour avers that the substituted service does not match her or anyone in her household who could accept service. (Id.).
“[A]ctual notice in section 473.5 means genuine knowledge of the party litigant. . . [A]ctual knowledge has been strictly construed, with the aim of implementing the policy of liberally granting relief so that cases may be resolved on their merits.’” (Ellard v. Conway (2001) 94 Cal.App.4th 540, 547 [Citations Omitted]). “[A] party can make a motion showing a lack of actual notice not caused by avoidance of service or inexcusable neglect . . .” (Trackman v. Kenney (2010) 187 Cal. App. 4th 175, 180). “‘[I]t does not require a showing that plaintiff did anything improper...[T]he defaulting defendant simply asserts that he or she did not have actual notice’.” (Id.).
The Court finds that the motion is timely as the motion to vacate was filed on December 15, 2025, a little after two months after the initial entry of default pm October 6, 2025, and before Judge Hayashi then granted default judgment on March 27, 2026, after the defendant already filed her motion.
Based on the unopposed motion to vacate the default judgment, timeliness, and the Plaintiff’s non-opposition and request to dismiss the second cause of action, the Court finds there is good cause to vacate the entry of default and default judgment.
IV. CONCLUSION Based on the foregoing, the Plaintiff’s non-opposition to the defendant’s motion to vacate the default judgment, the Court GRANTS the motion. IT IS SO ORDERED that the entry of default and default judgment is hereby VACATED.
Defendant is ORDERED to file her Answer within thirty (30) days of this hearing.
The Plaintiff’s request to dismiss the second cause of action without prejudice is GRANTED. The Court will prepare the formal Order.
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