Motion to Set Aside/Vacate Default and Default Judgment (CCP 473.5)
25CV136315: PATELCO CREDIT UNION vs JEFFERSON 07/23/2026 Hearing on Motion to Set Aside/Vacate Default and Default Judgment (CCP 473.5) filed by Aretha Jefferson (Defendant) CRS# 780451575917 in Department 15
Tentative Ruling - 07/17/2026 Peter Borkon
The Motion to Set Aside Default and Default Judgment filed by Aretha Jefferson on 04/23/2026 is Denied.
This is an action for breach of contract, fraud, and other claims arising from events that allegedly occurred after Plaintiff Patelco Credit Union (Patelco) experienced a ransomware attack in June 2024. Patelco asserts claims against Defendant Aretha Jefferson (Defendant) for breach of contract, fraud, conversion, unjust enrichment, and violation of Penal code sections 496 and 496c.
On 10/21/2025, Patelco obtained Defendants default. On 10/28/2025, Patelco requested a default judgment, which was rejected on evidentiary grounds. On 4/9/2026, Patelco resubmitted its request for default judgment. On 4/23/2026, Defendant filed this motion for relief from default and default judgment (which was still pending). On 5/6/2026, the second request for default judgment was rejected due to this pending motion.
Defendant seeks relief from default pursuant to Code of Civil Procedure (CCP) sections 473 and 473.5, citing lack of proper service. For the reasons discussed below, the motion is denied.
DISCUSSION
Section 473(b): A party seeking relief from default under section 473(b)must apply for relief within a reasonable time, in no case exceeding six months, after the default was entered, and the motion must be accompanied by the pleading proposed to be filed.(CCP § 473(b).) Defendant is not entitled to relief under section 473(b) because the motionwas nottimelyfiledwithin six months after entry of default and no responsive pleading was submitted.
Section 473.5: CCP section 473.5 allows a party to seek relief from default where service of the summons has not resulted in actual notice to the party in time to defend the action.The motionmust befiledwithin a reasonable time, not to exceed two years after entry ofdefault, andmust be accompanied by a copy of the answer or other responsive pleading proposed to be filed.(CCP § 473.5
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Defendant timely filed this motion within six months after Patelco mailed its first request for entry of default to Defendant on 10/20/2025 (noting the five-day extension of time for service by mail under CCP section 1013(a)). The Court turns to the remaining requirements under section 25CV136315: PATELCO CREDIT UNION vs JEFFERSON 07/23/2026 Hearing on Motion to Set Aside/Vacate Default and Default Judgment (CCP 473.5) filed by Aretha Jefferson (Defendant) CRS# 780451575917 in Department 15 473.5.
The proof of service filed by Patelco on 9/19/2025 states that Defendant was personally served at 1713 Crater Peak Way, Antioch, California 94531, on 9/14/2025 at 5:00 p.m. Registered process server Francisco Javier Rivera signed the proof of service under penalty of perjury. A registered process servers declaration of service creates a presumption of valid service. (Evid. Code § 647; see also Rodriguez v. Cho (2015), 236 Cal.App.4th 742, 750.) Thus, Defendant must rebut the presumption with evidence that she was not served. (Rodriguez, 236 Cal.App.4th at 750.)
Defendants supporting declaration asserts that she was not properly served because the process server initially attempted service at the wrong address, and the documents were later given to my 15-year-old-daughter, who is a minor and not authorized to accept service. (Jefferson Decl. ¶¶ 2-4.) Defendant does not state that she was not present, or absent from the residence, at the time of service. She provides details which suggest that Defendant may have been present at the time, such as, The person who delivered the documents did not explain what they were, and there was a language barrier. (Id. ¶ 5.) These statements do not effectively rebut the presumption of service created by Riveras declaration.
Defendants declaration also fails to address whether the lack of actual notice was due to avoidance of service or inexcusable neglect. (CCP § 473.5(b).) Defendant does not explain how or when she learned of the lawsuit, if not through service. Defendant also fails to submit the proposed responsive pleading required by statute. (CCP § 473.5(b) [The party shall serve and file with the notice a copy of the answer, motion, or other pleading proposed to be filed in the action.].)
The Court acknowledges that California courts observe a policy of liberally granting relief so that cases may be resolved on their merits. (Ellard, 94 Cal.App.4th at 547; see also Olvera v. Olvera (1991) 232 Cal.App.3d 32, 3940.) Here, however, the evidence does not permit the Court to reasonably conclude that Defendant failed to respond due to lack of actual notice, or that the lack of actual notice was due to circumstances other than avoidance of service or inexcusable neglect. Accordingly, the motion is DENIED.
The Court will set a case management conference. Counsel and Defendant are encouraged to attempt a resolution of this case on their own in advance of the next CMC. If helpful, the Court may offer to assist by referring this matter to an early mediation.
FURTHER CONFERENCE A Case Management Conference is scheduled for 10/13/2026 at 02:30 PM in Department 15.