by Defendants Kathy Wood and Kathy Wood as Trustee of the Kathy L. Wood Separate Property Trust Motion to Set Aside Default
(49) Tentative Ruling
Re: Ballance v. Wood et al. Superior Court Case No. 25CECG04092
Hearing Date: May 6, 2026 (Dept. 403)
Motion: by Defendants Kathy Wood and Kathy Wood as Trustee of the Kathy L. Wood Separate Property Trust Motion to Set Aside Default
Tentative Ruling:
To grant the motion to set aside default. (Code Civ. Proc., § 473.5, subd. (a).) Defendants Kathy Wood, individually, and as trustee of the Kathy L. Wood Separate Property Trust are directed to file the proposed responsive pleading within five days of service of the order by the clerk.
Explanation:
Defendants Kathy Wood, individually, and as trustee of the Kathly L. Wood Separate Property Trust (“Defendants”) move to set aside the defaults entered against them by plaintiff Richard Ballance, as trustee of the Ballance Family Living Trust Dated June 16, 2022 (“Plaintiff”).
When considering the motion to set aside the defaults, “[i]t is the policy of the law to favor, whenever possible, a hearing on the merits.” (Shamblin v. Brattain (1988) 44 Cal.3d 474, 478.) Further, “when a party in default moves promptly to seek relief, very slight evidence is required to justify a trial court’s order setting aside a default.” (Ibid.) Defendants seek relief under Code of Civil Procedure section 473.5. Code of Civil Procedure section 473.5, in pertinent part, states:
(a) When 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 the party in the action, the party may serve and file a notice of motion to set aside the default or 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 the party; or (ii) 180 days after service on the party of a written notice that the default or default judgment has been entered.
(b) A notice of motion to set aside a default or default judgment and for leave to defend the action shall designate as the time for making the motion a date prescribed by subdivision (b) of Section 1005, and it shall be accompanied by an affidavit showing under oath that the party’s lack of actual notice in time to defend the action was not caused by the party’s avoidance of service or inexcusable neglect. The party shall serve and file 11
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with the notice a copy of the answer, motion, or other pleading proposed to be filed in the action.
(c) Upon a finding by the court that the motion was made within the period permitted by subdivision (a) and that the party’s lack of actual notice in time to defend the action was not caused by the party’s avoidance of service or inexcusable neglect, it may set aside the default or default judgment on whatever terms as may be just and allow the party to defend the action.
On September 13, 14, 16, 17, 19, and 21, 2025, the process server for Plaintiff attempted to serve Defendants. On September 23, 2025, the process server for Plaintiff purportedly served Defendants by substitute service. The process server indicates the process server gave the documents to a competent member of the home at 9256 E Belmont Ave, Sanger, California 93657. The process server did not get the name of the person to whom the documents were given. The proof of service describes the person the documents were given to as a woman who was five feet five inches tall and 165 pounds.
Defendant Kathy Wood last measured four feet nine inches tall and weighed 90 pounds. (Wood Decl., ¶ 5.) Kathy Wood was home alone on September 23, 2025. (Id., ¶ 6.) Kathy Wood never received a copy of the summons and complaint in the mail. (Id., ¶ 7.) Kathy Wood, as trustee for the Kathy L. Wood Separate Property Trust, was never served with the summons and complaint in her capacity as trustee for the Kathy L. Wood Separate Property Trust. (Id., ¶ 10.) Default was entered on November 13, 2025. On January 9, 2026, counsel for Defendants first learned of this case’s existence. (Dowling Decl., ¶ 3.)
On January 13, 2026, Defendants contacted Plaintiff about setting aside the default. (Dowling Decl., ¶ 5.) On March 2, 2026, Defendants filed this motion to set aside the default.
Based on the above, the court finds that Defendants did not have actual notice. Therefore, the court grants the motion by Defendants to set aside the default.
Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure section 1019.5, subdivision (a), no further written order is necessary. The minute order adopting this tentative ruling will serve as the order of the court and service by the clerk will constitute notice of the order.
Tentative Ruling
Issued By: lmg on 5-5-26. (Judge’s initials) (Date)
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