Midland Credit Management, Inc. vs. Shapiro

13 Midland Credit TENTATIVE RULING: Management, Inc. vs. Motion to Set Aside Default Shapiro

For the reasons set forth below, Defendant Michael S. Shapiro’s motion to set aside the Default entered on April 15, 2026, and the Default Judgment entered on April 24, 2026, is GRANTED. The court ORDERS Defendant to file a responsive pleading to the Complaint on or before June 19, 2026.

Code of Civil Procedure section 473, subdivision (d) provides the court may, on motion of either party after notice to the other party, set aside any void judgment or order. Inclusion of the word “may” in the language of section 473, subdivision (d) makes it clear that a trial court retains discretion to grant or deny a motion to set aside a void judgment or order. (Cruz v. Fagor America, Inc. (2007) 146 Cal.App.4th 488, 495.)

“Under section 473, subdivision (d), the court may set aside a default judgment which is valid on its face, but void, as a matter of law, due to improper service. [Citations.]” (Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1200.) Defendant contends that the default and default judgment are void because he was not properly served with the Summons and Complaint.

According to the Proof of Service, Defendant was personally served with the Summons and Complaint on February 7, 2026, by a registered California process server. (ROA 11) Defendant declares that he was never served with the Summons and Complaint and has never spoken with the process server who signed the Proof of Service. Defendant further declares that he had a dermatologist appointment after work hours and that, to the best of his knowledge, Defendant was not at home at the time the Proof of Service indicates he was served. (Shapiro Decl. ¶¶ 3-4.)

Plaintiff did not file an opposition and, thus, failed to meet its burden to show effective service. The Court finds that the Default and Default Judgment are void and orders that they be set aside.

Defendant to give notice.

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