Motion to Set Aside Default/Judgment
June 3, 2026 Law and Motion Calendar Judge Nicole S. Healy Department 28 ________________________________________________________________________ Case Title / Nature of Case
02:00 PM LINE 1 18-CLJ-04360 MIDLAND FUNDING LLC VS. JOSE BENITEZ, ET AL
MIDLAND FUNDING LLC NICHOL ALAN DE GUZMAN JOSE BENITEZ PRO SE
Motion to Set Aside Default/Judgment (continued from 3/11/26)
TENTATIVE RULING:
The unopposed Motion to Set Aside and Vacate Default Judgment filed by Jose Benitez is GRANTED.
In the proof of service of the summons, complaint, and other documents, the process server states that he personally served “JOSE BENITEZ, Who accepted service, with identity confirmed by subject saying yes when named a black-haired Hispanic male approx. 25-35 years of age, 5’8”-5’1 0” tall and weighing 140 160 lbs” on September 4, 2018. In his declaration, Benitez states that the “proof of service describes the person served as hispanic male 5’9-to 5’10 140 pounds. I am 5’6 300 pounds . . .” Benitez further states that he did not live at the address where he was purportedly served but left in 2014. He therefore contends that he was not the person served.
A court obtains jurisdiction over a defendant who has been properly served with the summons and complaint. (Stancil v. Superior Court (2021) 11 Cal.5th 381, 392 [“Ordinarily, a court gains jurisdiction over the defendant from the time the defendant is served with a copy of the summons and the complaint on which it’s based, as required under the Code of Civil Procedure.”]; Code Civ. Proc., § 415.10.) Where the proof of service asserts that the defendant was personally served but incorrectly describes the defendant, the court cannot presume that the proof of service is valid, and therefore lacks jurisdiction over the defendant. (American Express Centurion Bank v.
Zara (2011) 199 Cal.App.4th 383, 390 [proof of service inaccurately described defendant; “in the absence of evidence from the process server, the uncontradicted evidence is that the process server did not personally serve defendant. Plaintiff therefore did not carry its burden of proving the facts requisite to an effective service.”].)
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Plaintiff has not opposed the motion. Accordingly, Benitez has shown that the proof of service does not describe him, and he therefore was not properly served. The default judgment is therefore vacated and set aside.
Moreover, because the summons and complaint were not served on the defendant and the case was not brought to trial within five years, the case is dismissed without prejudice. (Code Civ. Proc., § 583.310.)