CITIBANK, N.A. vs RASCON

Once the form is signed it must be filed with the clerk. If a litigant has been granted a fee waiver and requests a court reporter, the party must submit a Request for Court

23CV008414: CITIBANK, N.A. vs RASCON 08/20/2025 Hearing on Motion - Other to Set Aside Default and Default Judgment in Department 53

Reporter by a Party with a Fee Waiver (CV/E-211) and it must be filed with the clerk at least 10 days prior to the hearing or at the time the proceeding is scheduled if less than 10 days away. Once approved, the clerk will be forward the form to the Court Reporter’s Office and an official reporter will be provided.

TENTATIVE RULING:

The notice of motion does not provide notice of the Court’s tentative ruling system, as required by Local Rule 1.06. Moving party is directed to contact opposing counsel and advise of Local Rule 1.06 and the Court’s tentative ruling procedure and the manner to request a hearing. If moving party is unable to contact opposing counsel prior to the hearing, moving party is ordered to appear at the hearing by Zoom or in person.

The motion of Defendant in pro per Lisseth Rascon (“Defendant”) to set aside default and default judgment is unopposed and ruled upon as follows

This is a debt collections case brought by Plaintiff Citibank, N.A. (“Plaintiff”) on September 12, 2023. Default and default judgment were entered on September 18, 2024.

Here, Defendant argues that she did not receive notice of this lawsuit until well after judgment had been entered. She contends that she was never personally served, nor did she receive any copy of the complaint, summons, or notice of default judgment. Defendant also contends that any failure to appear was not intentional or willful, and thus, constituted excusable neglect. It appears Defendant requests relief from default pursuant to Code of Civil Procedure sections 473.5, 473(b), and 473(d). (See Ntc. Mot.)

CCP § 473(b)

Code of Civil Procedure section 473(b) provides that “[t]he court may, upon any terms as may be just, relieve a party . . . from a judgment, dismissal, order or other proceeding ... taken against him or her through his or her mistake inadvertence, surprise, or excusable neglect.” A motion for relief from judgment under this portion of the section lies within the sound discretion of the trial court. (Elston v. City of Turlock (1985) 38 Cal.3d 227, 233.)

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV008414: CITIBANK, N.A. vs RASCON 08/20/2025 Hearing on Motion - Other to Set Aside Default and Default Judgment in Department 53

Section 473(b) also provides: “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.” (Emphasis added.)

As stated above, default and default judgment were entered on September 18, 2024. Plaintiff filed this instant motion on April 29, 2025, well past six months after the entry of default judgment. Defendant’s request for relief pursuant to Section 473(b) is untimely, and on this ground, must be DENIED.

CCP § 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.”

However, Code of Civil Procedure section 473.5(b) requires that “The party shall serve and file with the notice a copy of the answer, motion, or other pleading proposed to be filed in the action.” Defendant has failed to provide with this motion a copy of the proposed answer, as required.

Accordingly, Defendant’s request for relief pursuant to Section 473.5 is DENIED, without prejudice.

CCP § 473(d)

“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.” (Code Civ. Proc., § 473(d).) A motion pursuant to Code of Civil Procedure section 473(d) may be premised on the contention that the default and default judgment, while valid on their face, are void for lack of proper service. (See Trackman v. Kenny (2010) 187 Cal.App.4th 175, 180; see American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 389-393.) “Thus, a default judgment entered against a defendant who has not been served with a summons in the manner prescribed by statute is void.” (Dill v. Berquist Construction Co. (1994) 24

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV008414: CITIBANK, N.A. vs RASCON 08/20/2025 Hearing on Motion - Other to Set Aside Default and Default Judgment in Department 53

Cal.App.4th 1426, 1444.)

Here, by way of submitted declaration, Defendant states that she did not receive notice of this lawsuit until well after judgment had been entered. She contends that she was never personally served, nor did she receive any copy of the complaint, summons, or notice of default judgment.

Plaintiff does not oppose the motion. A party's failure to oppose a motion is construed as a concession on the merits of the motion. (See D.I. Chadbourne, Inc. v. Superior Court (1964) 60 Cal.2d 723, 728, fn. 4.)

Accordingly, the Court determines Defendant has shown relief pursuant to Section 473(d) is warranted. GRANTED. Defendant’s motion to set aside default and default judgment pursuant to Code of Civil Procedure section 473(d) is GRANTED.

Disposition

Defendant’s motion to set aside default and default judgment is GRANTED in part and DENIED in part, as set forth herein.

The default and default judgment entered against Defendant on September 18, 2024, are set aside.

In accordance with the proposed order submitted by Defendant in support of this motion, Defendant shall file any responsive pleading or a motion to compel arbitration within fifteen (15) days of this Order.

This minute order is effective immediately. No formal order or other notice is required. (Code Civ. Proc., § 1019.5; Cal. Rules Court, rule 3.1312.)