Hill, Jacob v. Keller Williams Realty

7. S-CV-0052009 Hill, Jacob v. Keller Williams Realty

This tentative ruling is issued by the Honorable Leon A. Dixson. If oral argument is timely requested, it will be heard on August 18, 2026, at 1:00 p.m. in Department 41.

Defendant Amber Acosta’s Motion to Set Aside Default and Default Judgment

Defendant, Ms. Acosta, moves to set aside the default and default judgment entered against her on June 9, 2025, and August 12, 2025, respectively, pursuant to Code of Civil Procedure sections 473(b) and 473.5(a). The judgment was amended August 29, 2025. Plaintiff, Jacob Hill, opposes the motion.

As a preliminary matter, Ms. Acosta failed to file proof of service of this motion as required. However, as Mr. Hill filed a substantive opposition, the court exercises its discretion to review the motion on the merits to prevent further delay.

Ms. Acosta argues the default and default judgment should be set aside pursuant to Code of Civil Procedure sections 473(b) and 473.5(a) because she did not receive actual notice of service of summons.

Code of Civil Procedure section 473(b) provides a party or the party’s legal representative an opportunity to be relieved from a judgment, order, or other proceeding taken against that party based on certain grounds. However, the application for relief “shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (Code Civ. Proc., § 473(b).)

Ms. Acosta cannot rely on section 473(b) to set aside the default and default judgment because she filed the motion more than six months following the entry of default and default judgment.

Ms. Acosta also relies on Code of Civil Procedure section 473.5(a), alleging she did not receive actual notice of service of summons.

“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 the party in the action, the party 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 the party; or (ii) 180 days after service on the party of a written notice that the default or default judgment has been entered.” (Code Civ. Proc., § 473.5 (a).)

There is a rebuttable presumption that service was proper where service was conducted by a registered process server. (Evid. Code, § 647.) Ms. Acosta’s sworn declaration contradicts the averments made by the unregistered process servers.

Mr. Hill filed proof of service of summons showing substitute service was conducted by an unregistered process server on June 12, 2024, at 1553 Montrose Lane, Lincoln, CA 95648. The person who accepted service was identified as “Ms. Angelina Rey; Mother.” However, Ms. Acosta filed a declaration with her motion stating she does not reside or receive mail at 1553 Montrose Lane, Lincoln, CA 95648. (See Mot. Set Aside, Exh. 2.)

Mr. Hill filed proof of service with the court stating an unregistered process server personally served the Third Amended Complaint on Ms. Acosta at 1553 Montrose Lane, Lincoln, CA 95648 on April 17, 2025. Ms. Acosta asserts in her declaration that she was not present at that location on the date in question. She states she was attending her nephew’s baptism in the state of Washington with her husband and other family. (See Mot. Set Aside, Exh. 2.)

Having read and considered the pleadings, the court finds proper service was not effectuated in this case. Ms. Acosta’s motion is granted pursuant to Code of Civil Procedure section 473.5(a). The default, default judgment, and amended default judgment entered against her on June 9, 2025, August 12, 2025, and August 29, 2025, respectively, are hereby set aside. Ms. Acosta shall file and serve her answer to the Third Amended Complaint by August 28, 2026.

8. S-CV-0053983 Gray, Bobby Dean III v. Foster, Steven

If oral argument is requested, it will be heard in Department 32 by the Honorable Trisha J. Hirashima.

Plaintiff is advised the notice of motion must include notice of the court’s tentative ruling procedures. (Local Rule 20.2.3(C).)

Amended Motion for Leave to File a Fourth Amended Complaint (“4AC”)

Plaintiff moves for an order granting leave to file a fourth amended complaint to add and delete various factual allegations and to add a defendant. Plaintiff initially filed this motion for leave on April 3, 2026 and then filed an amended motion on May 12, 2026. While defendants filed an opposition on August 5, 2026, defense counsel has since notified the court that due to defense counsel’s inadvertence, defendants’ August 5, 2026 opposition was in response to plaintiff’s April 3, 2026 motion rather than the amended May 12, 2026 motion. Defendants’ request for leave to file an opposition to the amended motion is granted.

The court continues the hearing on the amended motion for leave to file a 4AC to September 22, 2026 at 8:30 a.m. in Department 32. Defendants shall file and serve their supplemental opposition by September 9, 2026. Plaintiff shall file and serve his supplemental reply by September 15, 2026.

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