CAPITAL ONE BANK; ET AL. vs. JULIETTA OWEN

Case No. FCM169564

Motion by Plaintiff to Vacate Dismissal and Enter Judgment Under Terms of Stipulated Settlement Against Defendant

Reflecting due process concerns, service of a motion affecting the rights of a defendant who has not appeared in an action typically is required to be made in the same manner as required for service of summons and complaint. See, e.g., applications for writs of attachment [C.C.P. §482.070(d)], and applications for writs of possession [C.C.P. §512.030(b)].

Defendant filed no responsive pleading in this action.

The only proof of service filed here for the motion papers shows service by mail, on Defendant, at an address at which personal service of summons and complaint had been completed over six years earlier. No evidence was provided to explain how this could constitute proper service on a defendant who has never appeared in this action.

Plaintiff’s motion is denied without prejudice. Should Plaintiff seek to refile their motion, Plaintiff is directed to effect service of the motion papers in the same manner as required for service of a summons and complaint.

The Court notes that Plaintiff previously filed the same motion on July 11, 2022. On July 6, 2023, the Court denied Plaintiff’s motion for the same reasons.

Plaintiff is also reminded that costs must be claimed post-judgment, per CRC 3.1700.

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