Midland Credit Management Inc. vs. Vasquez, Fatima

Case No.: VCL319916 Date: June 1, 2026 Time: 8:30 A.M. Dept. 9-The Honorable Nathan D. Ide Motion: Motion to Vacate Default Judgment

Tentative Ruling: To deny the motion

Facts

In this collection matter, Plaintiff has filed a proof of service purporting substitute service on Plaintiff occurred November 3, 2025 at 4:25 pm on "Jane Doe...an individual who refused to give their name who identified themselves as the co-resident. The individual accepted service with direct delivery. The individual appeared to be a brown-haired Hispanic female contact 18-25 years of age, 5'4"-5'6" tall and weighing 120-140 lbs with glasses." The proof of service indicates the summons and complaint, and related documents, were thereafter mailed to the same address. The proof of service was completed by a registered California process server and includes a statement of due diligence as to prior attempts to personally serve Defendant.

Default was entered March 17, 2026 with default judgment in the amount of $2,585.12 entered on March 24, 2026.

On April 9, 2026, Defendant filed this motion to vacate default and default judgment pursuant to Code of Civil Procedure sections 473 and 473.5. Plaintiff declares that "Defendant was not properly served with the Summons and Complaint and did not have notice of the lawsuit in time to respond" and "Defendant was not properly served with the Summons and Complaint." No responsive pleading appears to have been lodged with this motion. No proof of service appears to have been filed as to this motion.

Authority and Analysis

The Court notes first that under Evidence Code section 647: "[t]he 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." (Evid. Code Sec. 647.)

Under Evidence Code section 604: "[t]he effect of a presumption affecting the burden of producing evidence is to require the trier of fact to assume the existence of the presumed fact unless and until evidence is introduced which would support a finding of its nonexistence, in which case the trier of fact shall determine the existence or nonexistence of the presumed fact from the evidence and without regard to the presumption. Nothing in this section shall be construed to prevent the drawing of any inference that may be appropriate." (Evid. Code Sec. 604.)

Defendant's general declaration that service did not occur is insufficient to rebut the presumption afforded by the completed proof of service. As such, the Court cannot find a basis under section 473 as to mistake, inadvertence, surprise, or excusable neglect, or under section 473.5 as to lack of actual notice. Therefore, the Court denies the motion.