MOTION TO SET ASIDE DEFAULT
August 11, 2026 Law and Motion Calendar PAGE 25 Judge: HONORABLE NANCY L. FINEMAN, Department 04 ________________________________________________________________________
2:00 PM LINE 9 25-CIV-00564 ELAINE RYZAK FRASER VS. DWIGHT O WILLIAMS
ELAINE RYZAK FRASER ELAINE R. FRASER DWIGHT O WILLIAMS PRO SE
MOTION TO SET ASIDE DEFAULT
TENTATIVE RULING:
The Motion to Set Aside Default (the “Motion”) brought by Defendant Dwight O. Williams is GRANTED.
Background
Per the Complaint, Defendant retained Plaintiff as his attorney in his dissolution matter in 2018.
On about September 21, 2021, Defendant became delinquent in paying Plaintiff under the parties’ legal fee agreement, and thereafter kept promising Plaintiff to pay her from a personal injury settlement and from the sale of his house, but Plaintiff was never paid beyond a last payment of $1,000 on January 4, 2024 (Complaint, p.5, ¶ 15) or May 1, 2024 (id., p.6, box FR- 2.b). Defendant has allegedly failed and refused to pay Plaintiff $54,795.28.
Plaintiff requested and the Clerk entered the default of Defendant on December 2, 2025 (the “Default”). Plaintiff also sought a default judgment by the court, which the court denied without prejudice. (Judgment Denied without Prejudice, filed on March 5, 2026, p.2.)
As to the penultimate point, the court’s records show that Plaintiff filed proofs of service upon Defendant by substituted service upon his tenant at “236 Marvilla Cir [¶] Pacifica, CA 94044” and by mail at the same address (two Proofs of Service of Summons, filed on December 2, 2025, pp.1), which the court found questionable so that the served document was not filed.
Through his Motion to Set Aside Default (the “Motion”), Defendant now seeks an Order setting aside the default and any default judgment, and allowing him to file his proposed Answer.
The Motion Is Granted.
Inter alia, Defendant asserts that he was not validly served. (Code Civ. Proc., § 473
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According to Defendant and not disputed by Plaintiff, Defendant relocated from his residence in Pacifica, California, to Florida in 2020. (Williams Decl., ¶¶ 7, 9.) When the Summons and Complaint were served to his Pacifica address, it was occupied not by Defendant but by his tenants, whom he had not authorized to accept service of process on his behalf. (Id., ¶ 10.) Defendant does not recall being personally served at his Florida residence. (Id., ¶ 12.)
The Court’s records show that Plaintiff attempted service upon Defendant at an address in Florida (Non Service Report, filed on April 15, 2025), and then by substituted service upon his tenant at
August 11, 2026 Law and Motion Calendar PAGE 26 Judge: HONORABLE NANCY L. FINEMAN, Department 04 ________________________________________________________________________ “236 Marvilla Cir [¶] Pacifica, CA 94044” and by mail at the same address (Proof of Service of Summons, filed on June 10, 2025).
The non-service in Florida clearly is not constitute service. The last two declared forms of service are the same as those that the court later found questionable. Since Defendant’s tenant was not his authorized agent for service of process, the Court finds based upon Defendant’s declaration, that there was not proper service.
The requirements of the statutes governing service of process are to be strictly followed especially in light of the strong public policy of California courts to dispose of cases on their merits. Our Supreme Court has repeatedly reminded us that in this area doubts must be resolved in favor of relief, with an order denying relief scrutinized more carefully than an order granting it. “As Justice Mosk put it in Rappleyea [v. Campbell (1994) 8 Cal.4th 975] Because the law favors disposing of cases on their merits, any doubts in applying section 473 must be resolved in favor of the party seeking relief from default [citations].” (Lasalle v. Vogel (2019) 36 Cal.App.5th 127, 134–135 [internal quotations omitted].)
Thus, the Default is void. The Motion is granted. (Code Civ. Proc., § 473, subd. (d).)
Defendant is to file his proposed answer within five court days after notice of entry of order.
If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for Plaintiff shall prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, rule 3.1312, and provide written notice of the ruling to all parties who have appeared in the action, as required by law and the California Rules of Court.