On 03/07/2018 a Personal Injury - Motor Vehicle case was filed by FARMERS INSURANCE EXCHANGE against CARLOS ADRIAN RUBALCAVA in the jurisdiction of Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
FARMERS INSURANCE EXCHANGE
RUBALCAVA CARLOS ADRIAN
7/27/2018: REQUEST FOR ENTRY OF DEFAULT
11/21/2018: Notice of Change of Address or Other Contact Information
4/11/2018: PROOF OF SERVICE SUMMONS
3/7/2018: COMPLAINT FOR DAMAGES (PROPERTY DAMAGE)
Notice of Change of Address or Other Contact Information; Filed by Farmers Insurance Exchange (Plaintiff)Read MoreRead Less
Notice (Of Change Of Address); Filed by Farmers Insurance Exchange (Plaintiff)Read MoreRead Less
REQUEST FOR ENTRY OF DEFAULTRead MoreRead Less
Default Entered; Filed by Plaintiff/PetitionerRead MoreRead Less
PROOF OF SERVICE SUMMONSRead MoreRead Less
Proof of Service (not Summons and Complaint); Filed by Farmers Insurance Exchange (Plaintiff)Read MoreRead Less
SUMMONSRead MoreRead Less
Complaint; Filed by Farmers Insurance Exchange (Plaintiff)Read MoreRead Less
COMPLAINT FOR DAMAGES (PROPERTY DAMAGE)Read MoreRead Less
Case Number: BC696992 Hearing Date: February 20, 2020 Dept: 28
Motion to Set Aside Entry of Default
Having considered the moving and opposing papers, the Court rules as follows. No reply papers were filed.
On March 7, 2018, Plaintiff Farmers Insurance Exchange (“Plaintiff”) filed a complaint against Defendant Carlos Adrian Rubalcaba (“Defendant”) in subrogation for Plaintiff’s insured sustaining damages for a vehicle collision.
On July 27, 2018, the Court entered default against Defendant.
On August 6, 2019, the Court dismissed Does 1 through 30.
On January 23, 2020, Plaintiff filed a motion to set aside the July 27, 2018 entry of default pursuant to California Code of Civil Procedure section 473, subdivision (d).
On February 19, 2020, the Court entered default judgment against Defendant.
Defendant asks the Court to set aside the July 27, 2018 entry of default because Defendant was not served with the summons and complaint.
“The court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order.” (Code Civ. Proc. § 473, subd. (d).)
“A trial court has no statutory power under section 473, subdivision (d) to set aside a judgment that is not void: Once six months have elapsed since the entry of a judgment, ‘a trial court may grant a motion to set aside that judgment as void only if the judgment is void on its face.’” (Cruz v. Fagor America, Inc. (2007) 146 Cal.App.4th 488, 495-496.) “An order is considered void on its face only when the invalidity is apparent from an inspection of the judgment roll or court record without consideration of extrinsic evidence.” (Pittman v. Beck Park Apartments Ltd. (2018) 20 Cal.App.5th 1009, 1021 (citation omitted).) “If the invalidity can be shown only through consideration of extrinsic evidence, such as declarations or testimony, the order is not void on its face. Such an order must be challenged within the six-month time limit prescribed by section 473, subdivision (b), or by an independent action in equity.” (Ibid. (citations omitted).)
The judgment roll includes the following when the complaint is not answered and no demurrer was filed: “the summons, with the affidavit or proof of service, the complaint, the request for entry of default with a memorandum indorsed thereon that the default of the defendant in not answering was answered, and the copy of the judgment. (Code Civ. Proc. § 670, subd. (a).)
California Code of Civil Procedure section 473.5, subdivision (a) states “[w]hen 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 o 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.” A motion to set aside an entry of default filed pursuant to section 473.5 must be accompanied with an affidavit showing the moving party’s lack of actual notice was not caused by avoiding service or inexcusable neglect. (Code Civ. Proc., § 473.5, subd. (b).)
The Court initially notes that Defendant has not timely filed this motion pursuant to California Code of Civil Procedure section 473, subdivision (d) because over six months have passed since the entry of default.
Defendant may be entitled to relief pursuant to California Code of Civil Procedure section 473.5, subdivision (a). However, Defendant does not argue such. Accordingly, the Court cannot grant the corresponding relief.
The motion is DENIED.
Plaintiff is ordered to give notice of this ruling.