Capital One, N.A. vs. Barnett, David T

Case No.: VCL331502 Date: June 11, 2026 Time: 8:30 A.M. Dept. 1-The Honorable David C. Mathias

Motion: Defendant's Motion for Relief from Default Judgment Tentative Ruling: To deny the motion

Facts

In this common counts complaint, Plaintiff filed a proof of service purporting that personal service occurred on February 26, 2026, 2:35 pm at 3144 W Monte Vista Court, Visalia, on Defendant David Barnett. The proof of service was completed by a registered California process server.

Default was entered April 20, 2026. Default judgment in the amount of $2,160.85 was entered April 24, 2026.

On April 29, 2026, Defendant filed this motion for relief from default judgment pursuant to Code of Civil Procedure section 473. In support, Defendant declares "I timely filed a General Denial in response to the complaint. As a self-represented litigant, I did not understand that I was also required to serve Plaintiff' s counsel with a copy of my response. Because of that mistake, I did not appear and judgment was entered against me. I respectfully request that the Court vacate the judgment and allow this matter to be heard on the merits. I dispute the amount claimed and request the opportunity to defend this case."

Defendant has filed a proof of service of this motion. No opposition has been filed.

Authority and Analysis

The Court may relieve a party or counsel from a judgment, dismissal, order or other proceeding taken against the party resulting from mistake, inadvertence, surprise, or excusable neglect. (Code Civ. Proc., Sec. 473, subd. (b).) The application for relief must be made within a reasonable time, not to exceed six months, after the judgment, dismissal, order or proceeding was taken. (Id.)

"Section 473 is often applied liberally where the party in default moves promptly to seek relief, and the party opposing the motion will not suffer prejudice if relief is granted. [Citations.] In such situations 'very slight evidence will be required to justify a court in setting aside the default.' [Citation.]" (Elston v. City of Turlock (1985) 38 Cal.3d 227, 233.)

"A 'mistake' exists when a person, under some erroneous conviction of law or fact, does, or omits to do, some act which, but for the erroneous conviction, he would not have done, or omitted. It may arise either from unconsciousness, ignorance, forgetfulness, imposition, or misplaced confidence." (Salazar v. Steelman (1937) 22 Cal.App.2d 402, 405, 410.)

"Surprise" is defined as "some condition or situation in which a party to a cause is unexpectedly placed to his injury, without any default or negligence of his own, which ordinary prudence could not have guarded against." (Miller v. Lee (1942) 52 Cal.App.2d 10, 16.)

Further, "excusable neglect" has been defined as "neglect that might have been the act or omission of a reasonably prudent person under the same or similar circumstances." (Ebersol v. Cowan (1983) 35 Cal.App.3d 427, 435.)

"Finally, as for inadvertence or neglect, '[t]o warrant relief under section 473 a litigant's neglect must have been such as might have been the act of a reasonably prudent person under the same circumstances. The inadvertence contemplated by the statute does not mean mere inadvertence in the abstract. If it is wholly inexcusable it does not justify relief.' " (Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1206.)" (Henderson v. Pacific Gas & Electric Co. (2010) 187 Cal.App.4th 215, 230.)

Here, however, Defendant's statement that an answer was filed timely, but not served, is insufficient to grant the relief requested. To start, the Court notes no timely filing of an answer. Had an answer been filed, but not served, no entry of default or would have occurred and no default judgment would have been entered. However, in the absence of a timely filed answer, the Court does not find a basis for mistake, surprise, neglect or inadvertence.

Additionally, the Court notes a completed proof of service creates a rebuttable presumption that the documents as indicated in the proof of service were received. (Colleen M. v. Fertility & Surgical Assocs. (2005) 132 Cal.App.4th 1466, 1479-1480.) The presumption of proper service can be rebutted by introducing evidence that the document was not received. (Phay Him v. City & County of San Francisco (2005) 133 Cal.App.4th 437, 445.) A rebuttal of the presumption of proper service should be supported by sworn testimony that neither the attorney of record nor the party received the document. (Bonzer v. City of Huntington Park (1993) 20 Cal.App.4th 1474, 1479-1480.)

Here, the motion and declaration provide no grounds to rebut the presumption of proper service. Therefore, the Court denies the motion.

If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order.

Court reporters are usually not available for law and motion matters in the civil division. The parties and counsel must provide their own reporter if they want a transcript of the proceedings.

Re: Boutin, Raymond vs. City of Yreka, et al