Motion to Set Aside Default and Default Judgment
Where, as here, the Defendant made a timely demand, but failed to timely post the jury deposit fee, the general rule is: “When a party that has timely given notice that it desires trial by jury then loses the jury right because of technical noncompliance with some element of statutory procedure—such as failure to pay jury fees at the right time or in the right amount—lack of hardship to the other parties or the court is generally controlling, absent other factors that weigh against relief.” (TriCoast Builders, Inc. v. Fonnegra (2024) 15 Cal.5th 766, 782.)
Defendant has shown that the belated posting of jury fees was inadvertent. While Plaintiff contends it has been prejudiced in that its counsel has litigated the case as if it were going to be a court trial, there is no evidence that the court ever indicated that the matter would be tried by the court rather than a jury. Indeed, as late as 6/16/26, the court was indicating that the matter was scheduled as a jury trial. (See 6/16/36 Minute Order (ROA 166) [“Jury Trial continued to ....”].) Also, any purported prejudice could be remedied by a trial continuance.
Defendant’s request for judicial notice is DENIED as it is not necessary to take judicial notice of materials previously filed in this matter.
A jury trial remains set for 8/17/26.
Defendant to give notice.
8 Bank of America, Motion to Set Aside Default and Default Judgment N.A. vs. Resendiz The court GRANTS Defendant LINDA JANE RESENDIZ’s Motion to Set Aside Default and Default Judgment, made pursuant to sections 473(b), 473(d) and 473.5 of the Code of Civil Procedure.
Background: Plaintiff filed a Proof of Service re Summons and Complaint on 2/10/26, indicating that substitute service on Defendant Resendiz was completed on 2/10/26. (ROA 19.) Service was attempted and documents were
mailed to “11 Cielo Azul, Mission Viejo, CA 92692”. After no response was timely filed to the Complaint, default was requested and entered against Defendant on 3/24/26. (ROA 22.) After a default packet was submitted, default judgment was entered against defendant on 4/27/26. (ROA 27.) Two days later on 4/29/26, Defendant filed the instant motion to set aside the default and default judgment. (ROA 38.)
With her moving papers, Defendant proffers evidence suggesting that the proof of service was defective. For example, Defendant proffers a declaration stating that (1) her mailing address is PO Box 207, Trabuco Canyon, California 92678, which address was on file with the DMV, Plaintiff and others, (2) the Mission Viejo address used for service was not her dwelling house, usual place of abode, or usual mailing address at the time of service, and (3) Defendant learned of this lawsuit through her own inquiry of the court docket rather than through service of the summons and complaint.
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The court finds the evidence proffered by Defendant sufficient for this court to grant the motion. Where the party in default moves promptly to seek relief, and no prejudice to the opposing party will result from setting aside the default and letting the case go to trial on the merits, “very slight evidence will be required to justify a court in setting aside the default.” (Elston v. City of Turlock (1985) 38 Cal.3d 227, 233, superseded by statute on another point in Tackett v. City of Huntington Beach (1994) 22 Cal.App.4th 60.)
Further, the court notes that the following portions of Declaration of Reasonable Diligence attached to the Proof of Service re Summons [ROA 19] suggest that Defendant did not reside at the Mission Viejo address at the time of service: “Neighbor didn’t know the name of the subject or resident but said they seldom see anyone” and “Spoke with neighbor. She believes ‘Rueben’ is the only one who lives there now and she rarely sees him.” (See ROA 19; see also Holloway Decl., filed 7/17/26 [ROA 52].)
As such, the motion is GRANTED.
The court VACATES the default entered on 3/24/26 and the default judgment entered on 4/27/26.
Defendant is ORDERED to file and serve the proposed Answer within 5 days of this ruling.
The court sets a Case Management Conference for September 14, 2026, at 10:00 am in Dept. W8. All appearing parties SHALL file and serve a timely case management statement at least 15 calendar days prior to the continued hearing as required by the rules, including California Rules of Court rule 3.725 and Local Rule 369. Failure to do so may result in the imposition of monetary sanctions of $500.00 against the offending party and/or its attorney of record.
Re Service Issues:
The court further notes that the opposing papers were improperly electronically served. (See Proof of Service, filed 7/17/26 [ROA 56.) Defendant is self-represented and while “[a]n unrepresented party may consent to receive electronic service”, such consent is not apparent from a review of the court file. (See Code Civ. Proc., § 1010.6(c); see also, Cal. Rules of Court, rule 2.251(c)(3)(B) [selfpresented parties are to be served by non-electronic methods unless they affirmatively consent to electronic service].) As such, Plaintiff must not rely on electronic service unless the court file reflects that Defendant has consented to receive electronic service.
Further, the court notes that Defendant’s reply papers were accompanied by an improper proof of service. The proof of service was improperly signed by Defendant. (See Proof of Service, filed 7/23/26 [ROA 64].) A proof of service must be signed by a non-party. (See Code Civ. Proc., § 414.10 [“A summons may be served by any person who is at least 18 years of age and not a party to the action.”].) As such, Defendant should not again file a proof of service signed by Defendant.
Violation of the above service rules may result in sanctions, including the court striking or disregarding the papers filed.
Plaintiff to give notice.
9 Dong vs. Bivens Motion for Leave to Amend (re First Amended Complaint)
The court GRANTS Plaintiff PHIL DONG’s unopposed motion for leave to file a proposed First Amended Complaint (FAC).
Plaintiff appears to have complied with the procedural requirements of Rule 3.1324 of the California Rules of Court. (See Travieso Decl., ¶¶ 5-10, Exhs. 1-2.)
The Proposed FAC deletes the “loss of use of real property” claim, adds a quiet title cause of action, deletes references to the dismissed Defendant California Association of Realtors, adds allegations explaining the role of each defendant in the transaction; and specifies against which defendant(s) each cause of action is pled. (See Travieso Decl., Exh. 2.)
The court finds Plaintiff’s proposed FAC promotes resolution of the full dispute between the parties and clarifies the claims and allegations plead against each defendant.
No later than five (5) court days from the hearing, Plaintiff Dong shall file and serve the Proposed FAC (attached as Exhibit 1 to the Travieso Declaration).
Plaintiff to give notice.
2. Upcoming CMC
In light of the above ruling, the court CONTINUES the scheduled 8/10/26 Case Management Conference to 11/30/26, at 10:00 am in Dept. W8. All appearing parties SHALL file and serve a timely case management statement at least 15 calendar days prior to the continued hearing as required by the rules, including California Rules of Court rule 3.725 and Local Rule 369.
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