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Motion to set aside default and default judgment
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN BERNARDINO
MODERN ADJUSTMENT BUREAU, Case No.: CIVDS1505190 Plaintiff, [TENTATIVE] ORDER DENYING MOTION TO SET ASIDE v. DEFAULT AND DEFAULT JUDGMENT ILEIA NASH aka ILEIA WESTINA NASH; and DOES 1 through 10, inclusive., Defendants.
IV. INTRODUCTION
Currently before this Court is a motion by Defendant Ileia Nash seeking to set aside a
default and default judgment.
This action was commenced on April 9, 2015, by Plaintiff Modern Adjustment Bureau
(“Plaintiff” or “Modern”) asserting that prior to the commencement of this action, for valuable
consideration, Michael Feiz Medical Corporation assigned to this Plaintiff for collection, all
rights, title and interest in and to the within claim, and the Plaintiff is the lawful owner and
holder thereof. The complaint stated that on or about September 16, 2013, Defendant became
indebted to Plaintiff’s assignor on an open book account for medical services in the sum of
$18,384.00. The Complaint alleged further that although payment has been demanded, it has not
been paid. Causes of action were asserted for: (1) open book account; (2) account stated. A
verification was attached from John Hicks, secretary-treasurer of Modern, stating that the debt
has not been charged off and Plaintiff’s assignor maintains an equitable interest in this lawsuit.
A proof of service of the summons and complaint was filed on October 6, 2015, stating
that Defendant Ileia Nash aka Ilea Westina Nash (“Nash”), a Hispanic female of 33 years old,
black hair and 5’5 inches 140 pounds, was served at 25004 Camino Del Norte, Barstow
California by Steve Wierzbinski, a registered California process server.
On December 9, 2015, a request for entry of default was entered by the clerk and a
dismissal was filed as to the DOES. The assignment was also included in the declaration re-entry
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of judgment.
On November 14, 2022, an application for and renewal of judgment was entered. An
amended judgment was entered on November 10, 2022. A notice of renewal of judgment was
also filed on March 29, 2023.
On May 23, 2025, a writ return supplement, was filed by Modern Adjustments, reporting
some garnishees and stating the judgment deficit was still $31,659.23.
On December 19, 2025, a notice of hearing on claim of exemption set for January 22,
2026 was filed. At the hearing, Defendant Nash appeared pro se and her application was granted
in part by this Court. The Minute Order stated that Los Angeles County levying officer was
directed to release any earnings to the judgment creditor. The wage garnishment was lowered to
$100 per pay period not to exceed $200 monthly until paid in full. (See January 22, 2026 Minute
Order.)
On February 4, 2026, in pro per Defendant moved to set aside the judgment. After
opposition on March 5, 2026, the Court noted in its decision on March 5, 2026, Defendant was
withdrawing her motion. The Notice of ruling read: “The Court indicated that such a notice was
not presently filed with the Court. The Court ruled that either the motion to vacate was
withdrawn, and in the event that Defendant did not file such withdrawal, it was denied in its
entirety.” (See Notice of Ruling filed March 5, 2026.) On March 23, 2026, the proof of service
for the notice of March 5, 2026 hearing was filed.
Thereafter on May 8, 2026, Defendant, still in pro per, filed this present motion to set
aside her default and the default judgment. While filed on May 8, 2026, the proof of service
states this motion was served on April 29, 2026. On May 1, 2026, Plaintiff Modern filed an
opposition. After issuing a tentative ruling and holding a hearing on the motion, the Court now
issues its final ruling.2
V. APPLICABLE LAW Code of Civil Procedure § 473, entitled Amendment of Pleadings, states in pertinent part:
...
(b) 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....No affidavit or declaration of merits shall be required of the moving party.
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
2 The Court finds that the moving party has complied with its meet-and-confer obligation.
court shall, whenever relief is granted based on an attorney’s affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties.
“When relief under section 473 is available, there is a strong public policy in favor of
granting relief and allowing the requesting party his or her day in court. Beyond this period there
is a strong public policy in favor of the finality of judgments and only in exceptional
circumstances should relief be granted.” (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981–82.)
Code Civ. Proc., § 473.5, entitled Relief from Judgment Where Summons Does Not
Result in Actual Notice, states:
(a) 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.
(b) A notice of motion to set aside a default or default judgment and for leave to defend the action shall designate as the time for making the motion a date prescribed by subdivision (b) of Section 1005, and it shall be accompanied by an affidavit showing under oath that the party’s lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect. 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.
(c) Upon a finding by the court that the motion was made within the period permitted by subdivision (a) and that his or her lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect, it may set aside the default or default judgment on whatever terms as may be just and allow the party to defend the action.
VI. WHY THE MOTION SHOULD BE DENIED
A. The Original Judgment
Code Civ. Proc., § 1788.61, states in pertinent part, as follows:
(a)(1) Notwithstanding Section 473.5 of the Code of Civil Procedure, if service of a summons has not resulted in actual notice to a person in time to defend an action brought by a debt buyer and a default or default judgment has been entered against the person in the action, the person may serve and file a notice of motion
and motion to set aside the default or default judgment and for leave to defend the action.
(2) Except as provided in paragraph (3), the notice of motion shall be served and filed within a reasonable time, but in no event exceeding the earlier of:
(A) Six years after entry of the default or default judgment against the person.
(B) One hundred eighty days of the first actual notice of the action.
Generally, the law strongly favors trial and disposition on the merits, so any doubts about
setting aside a default must be resolved in favor of the party seeking such relief. (Elston v. City of
Turlock (1985) 38 Cal.3d 227, 233.) When the defaulting party moves promptly to seek relief
and the opponent to such request has or will suffer little prejudice, very slight evidence is
required to justify setting aside a default. (Ibid.; Shamblin v. Brattain (1988) 44 Cal.3d 474,
478.)
Under section 1788.61, subdivision (a)(2)(A)-(B), the Motion must be brought the earlier
of 6 years after entry of the default or default judgment against the person or one hundred eighty
days after Defendant’s first actual notice of the action. Defendant was garnished in 2024. She
cannot meet this timeline and admits in the proposed answer that she learned of this lawsuit on
May 5, 2024. Given that this motion is filed in April or May 2026, this motion is untimely under
§ 1788.61.
2. Code of Civil Procedure § 473.5 Relief is available under Code Civ. Proc., § 473.5 for “lack of actual notice.” This section
is designed to provide relief where there has been proper service of the summons, but the
defendant nevertheless did not find out about the action in time to defend. (WEIL & BROWN,
CALIFORNIA PRACTICE GUIDE: CIVIL PROCEDURE BEFORE TRIAL [The Rutter
Group] ¶ 5:420.) “Discretionary relief based upon a lack of actual notice under section 473.5
empowers a court to grant relief where a valid service of summons has not resulted in actual
notice to a party in time to defend the action.” (Anastos v. Lee (2004) 118 Cal.App.4th 1314,
1318 [emphasis added].) While the six-month time limit imposed on a motion for discretionary
relief under Code Civ. Proc., § 473, subd. (b), is imposed from the entry of the clerk’s default,
Code Civ. Proc., § 473.5 two-year period is measured from entry of the judgment. (WEIL &
BROWN, CALIFORNIA PRACTICE GUIDE: CIVIL PROCEDURE BEFORE TRIAL [The
Rutter Group] ¶ 5:429.)
“Thus, a party can make a motion showing a lack of actual notice not caused by
avoidance of service or inexcusable neglect, but such motion must be made no later than two
years after entry of judgment, and the party must act with diligence upon learning of the
judgment. (Code Civ. Proc., § 473.5; see Younger, California Motions (2009–2010 ed.) § 26:30,
p. 766 [‘it 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’]; [Citation].” (Trackman v.
Kenney (2010) 187 Cal.App.4th 175, 180.) “A party seeking relief under section 473.5 must
provide an affidavit showing under oath that his or her lack of actual notice in time to defend was
not caused by inexcusable neglect or avoidance of service. (Tunis v. Barrow, supra, 184
Cal.App.3d at pp. 1077–78, 229 Cal.Rptr. 389; § 473.5 subd. (b).)” (Anastos v. Lee, supra, 118
Cal.App.4th at p. 1319.) The Judicial Council Comments, Editor’s Note, 2022 states:
Section 473.5 permits the court to set aside a default or default judgment against a defendant, or in appropriate cases a third-party defendant, and allow him to defend the action on its merits. At least four facts must be shown by such defendant in his motion: (1) He received, through no inexcusable fault of his own, no actual notice of the action in time to appear and defend, and had not made a general appearance in the action. (2) A default judgment had been entered against him by the court. (3) He acted with reasonable diligence in serving and filing the notice of motion to set aside the default or default judgment (and in no event was the notice of motion served and filed later than the earlier of (a) two years after the entry of a default judgment against him or (b) 180 days after service on him of written notice of the default or the default judgment). (4) That he has a meritorious defense. (Subdivisions (a) and (b).)
In this case, Defendant admits to owing the debt. (See Defendant’s Declaration in support
of the answer dated March 3, 2026.) Additionally, she does not dispute she was properly served
in 2015 and lived at the address whereby she was served by the registered process server.
Therefore, this Court properly entered the default judgment.
It is Plaintiff’s burden to prove by preponderance of the evidence the validity of the
service and the court’s jurisdiction over the defendant by proving the facts requisite to an
effective service. (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413; Bolkiah v.
Superior Court (1999) 74 Cal.App.4th 984, 991.) A rebuttable presumption exists as to the facts
stated in the return when service is completed by a registered process server. Evidence Code
§ 647 (“The return of a process server registered pursuant to Chapter 16 (commencing with
Section 22350) of Division 8 of the Business and Professions Code upon process or notice
establishes a presumption, affecting the burden of producing evidence, of the facts stated in the
return.”); Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1441-42.) Plaintiff
submitted a declaration of personal service, filed October 6, 2015 by Steve Wierzbinski, a
registered process server. “Defendant declared that he was not served...the trial court was not
required to accept this self-serving evidence contradicting the process server’s declaration...”
B. Renewal of Judgment
CCP § 683.170, subdivision (a), provides that “[t]he renewal of a judgment pursuant to
this article may be vacated on any ground that would be a defense to an action on the judgment.”
As explained in Goldman v. Simpson, supra, 160 Cal.App.4th at 260–62, 364:
The statutory renewal of judgment is an automatic, ministerial act accomplished by the clerk of the court; entry of the renewal of judgment does not constitute a new or separate judgment. . . . [R]enewal does not create a new judgment or modify the present judgment. Renewal merely extends the enforceability of the judgment.” (Jonathan Neil & Associates, Inc. v. Jones, supra, 138 Cal.App.4th at p. 1489, fn. 1, 42 Cal.Rptr.3d 350.) “
A motion to vacate a renewal of judgment must be filed “[n]ot later than 60 days after
service of the notice of renewal pursuant to Section 683.160...” (Code Civ. Proc., § 683.170,
subd. (b).) A motion to vacate can be denied for untimeliness. (Goldman v. Simpson (2008) 160
Cal.App.4th 255, 261-64 [finding a motion to vacate renewal of judgment untimely where a
judgment was renewed on September 21, 2006 but the motion to vacate renewal of the judgment
was not made until April 10, 2007].)
This application is not timely. The judgment was renewed on March 29, 2023. While
Defendant asserts she moved from 25004 to 25019 Camino Del Norte, in June 2016, and
attaches a month-to-month rental agreement and a driver’s license which shows the 25019
Camino Del Norte address since 2022, and claims she did not receive a copy of the renewal of
the judgment, she filed this motion on May 8, 2026, over three years after the renewal judgment
was entered. Defendant had also been garnished in the interim and admits to knowing about the
proceeding on May 5, 2024, over two years after the renewal. Additionally, as explained above,
the original judgment was proper; Defendant was personally served, by a registered process
server at the address where she admitted she lived.
VII. CONCLUSION Defendant’s Motion to Set Aside the Defendant’s Default and Default Judgment is
respectfully DENIED.
IT IS SO ORDERED.
Dated: [TENTATIVE – NOT FINAL] Hon. Joseph B. Widman Judge of the Superior Court